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Decided on June 27, 2019
The People v. James R. McIntosh
Issue before the Court: Whether, assuming the trial court erred in not charging second-degree manslaughter as a lesser included offense to the indicted counts of second-degree murder and first-degree manslaughter, the error was rendered harmless by the guilty verdict for second-degree murder.
Held: Yes, even though the court submitted both second-degree murder and first-degree manslaughter to the jury without telling them to consider those counts in descending order only, thus resulting in the jury’s conviction of both counts.  In this circumstance, the jury’s conviction of the top count, not their conviction on the intervening first-degree manslaughter count, is what controls for harmless-error-analysis purposes.  People v. Boettcher, 69 N.Y.2d 174, 180 (1987).
CAL Observes: The interesting issue was the one not raised in this case.  Although, according to the Appellate Division decision, the defendant had been drinking prior to the stabbing of the victim, he did not raise an intoxication defense.  Had he done so, the result would have been different.  While intoxication negates intent, it does not negate a reckless state of mind.  Therefore, in an intentional murder prosecution where the defense of intoxication is raised, the proper lesser included offense is second-degree reckless manslaughter, not intentional first-degree manslaughter.   Thus, conviction on the top murder count, and the jury not reaching the first-degree manslaughter count, would not render the error in not submitting second-degree manslaughter harmless.  People v. Lee, 35 N.Y.2d 826 (1974).  See also, People v. Stovall, 101 A.D.2d 793 (1st Dept. 1984).
Decided on June 27, 2019
The People v. Rayheame Hill
Issue before the Court: Whether the Appellate Division exceeded its jurisdiction in upholding suppression on a ground different than that relied upon by the trial court.
Held: Ruling 4-3 on SSM the majority said no.
Discussion: Investigating a robbery in which a gun was discharged, the detective went to the hospital where defendant was being seen for a bullet wound and searched his belongings, finding proceeds of the robbery.  The detective then searched defendant’s girlfriend’s car and defendant’s father’s home, where defendant resided, recovering more proceeds from the robbery and the gun.  The trial court suppressed the items found at the hospital, but held that defendant lacked standing to contest the other searches or, alternatively, that the police had consent.  The suppression court did not address attenuation. The First Department agreed either with the standing arguments or the consent arguments and found attenuation based on independent source and inevitable discovery. The dissent found no attenuation.
In a three sentence ruling, devoid of any reasoning, the four-judge majority in the COA found “no basis to disturb the suppression determination” and held that “the Appellate Division did not run afoul of our decision in People v LaFontaine (92 NY2d 470 [1998]) or its progeny (see People v Nicholson, 26 NY3d 813, 826 [2016]).”  In a three page dissent, Judge Fahey disagreed, arguing that C.P.L. § 470.15 precluded the Appellate Division from finding attenuation as that issue had not been addressed by the suppression court.
CAL Observes: This case is interesting both procedurally and legally.  From a procedural standpoint, it is remarkable that the LaFontaine issue, which split the Court 4-to-3, and which had not been addressed by the parties in their letter briefs, was decided by the Court on SSM without benefit of any briefing or argument.  Also remarkable is that the majority’s decision makes no effort whatsoever to explain its ruling or rationale, despite the dissent’s extended discussion of the issue.  All told, that would not seem the best way to resolve a disputed issue of appellate jurisdiction.
As for the legal implications of the rulings, given the majority’s brevity those are hard to determine.  Notably, both LaFontaine and Concepcion (which revived LaFontaine from disuse in 2011), dealt explicitly with the Appellate Division upholding suppression on a ground rejected by the suppression court.  Then in Ingram, in 2012, the Court extended (ironically, also in a memorandum decision over a signed dissent), LaFontaine/ Concepcion to where the Appellate Division upheld suppression on a ground not reached by the suppression court.  An exception was recognized in Nicholson, in 2016, where the Court found that the Appellate Division could affirm on the basis of an “unarticulated predicate” of the trial court’s ruling.  One doubts that Nicholson meant to undue Ingram where the Nicholson opinion was drafted by Rivera and joined by Fahey, who now band together again in dissent in this case.  Why this case falls under Nicholson and not Ingram is by no means apparent.  We are left with no guidance, but on time for our summer vacation.
Decided on June 27, 2019
The People v. Arthur W. Ellis Jr.
Issue before the Court: Does New York’s Sex Offender Registry require registered individuals to notify law enforcement that they have a Facebook account?
Factual Background: Mr. Ellis was registered on New York State’s sex offender [SORA] registry. Law enforcement maintained that Mr. Ellis was therefore required to reveal that he had a Facebook account and his failure to do so prompted a felony indictment under Correction Law § 168-t. He moved to dismiss the indictment and argued that the Correction Law requirement that he reveal all “internet identifiers” did not mean that he had to register his Facebook account. After losing this argument in the trial court, Mr. Ellis pleaded guilty but he appealed.
Held: In a unanimous decision, the Court of Appeals agreed with  Mr. Ellis’ statutory interpretation. Correction Law § 168-f (4) requires individuals to provide a list of all their “internet identifiers,” which the Court said included email addresses and “screen names.” The statute, however, does not mandate that individuals reveal their internet accounts, including Facebook. Because the indictment, therefore, did not “charge defendant with a crime,” it was “jurisdictionally defective,” and should have been dismissed. 
Since Mr. Ellis used his “real, full name” on Facebook, he did not have a “screen name” to disclose to law enforcement. In dicta, the Court of Appeals mentioned that Facebook may ask DCJS to give them registrants’ screen names and email addresses, Correction Law § 168-a (16), in order to “prescreen or remove sex offenders from their services.” While the US Supreme Court held, in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), that law enforcement cannot prohibit all sex offenders from using Facebook,  Facebook’s stated policy is that “convicted sex offenders aren’t allowed to use Facebook.” It’s not clear how often Facebook actually requests registrants’ screen names and emails and kicks them off the site.
CAL Observes: In the New York Law Journal article reporting this winning decision, Mr. Ellis’ successful defense attorney urged defendants who’ve been convicted in similar situations “to seek a reversal.”  Dan M. Clark, “Sex Offenders Need Not Disclose Facebook Accounts to Law Enforcement NY Court of Appeals Rules.” 
Since the Court of Appeals found that the indictment was jurisdictionally defective, this issue can be raised for the first time on appeal – even if the defendant pleaded guilty and even if he or she failed to litigate this issue in the trial court. See People v. Iannone, 45 N.Y.2d 589 (1978). Some case law further suggests that the issue could also be raised successfully for the first time in a post-conviction CPL 440 motion. Cf. People v. Reeves, 78 A.D.3d 1332 (3rd Dept. 2010)  (Defendant successfully used CPL 440 motion to argue that the accusatory instrument was defective because it did not sufficiently allege the crime of promoting prison contraband as subsequently interpreted by the Court of Appeals in People v. Finley, 10 N.Y.3d 647 (2008)). The future success of 440 motions to vindicate the principle announced in People v. Ellis remains to be seen.
Decided on June 27, 2019
The People v. Emmanuel Almonte
Issues before the Court: (1) Was the defendant entitled to submission to the jury of third-degree assault as a lesser included offense of the charged counts of first- and second-degree assault, on the theory that the jury could have found that the complainant’s injuries were not caused by a dangerous instrument?  (2) Did the trial court err in admitting the call between the complainant and the 911 operator as an excited utterance? 
Held: In a short memorandum decision devoid of any relevant facts (notwithstanding this was  a fully briefed case), a majority of the Court (Judges Rivera and Wilson predictably dissenting) held (1) that the defendant failed to show the necessary “reasonable view,”and that charging third-degree assault would have forced the jury to resort to “sheer speculation;” and (2) “Assuming, without deciding, that it was error to admit the 911 call, any such error would have been harmless.”         
CAL Observes: One wonders what the majority members of the Court see as their job description.  Certainly, it doesn’t appear to be addressing the law and the facts presented by the case before it in a meaningful or thoughtful way, as one might dare to expect from the highest Court in New York State.   Only by reading Judge Rivera’s dissent does one see that the issues before the Court were hardly the no-brainers suggested by this worthless Memorandum opinion (except for contextless, general quotes our adversaries will surely freely cite against us in the future), or that the outcome could (and should) have been different.
From Judge Rivera’s thorough explication of the facts, it is clear that there was a legitimate jury question concerning whether the defendants used a gun to assault the complainant, as was claimed by the complainant at trial.  The complainant’s own testimony about the location and nature of the attack allowed for his injuries to have been caused other than by a gun; the physician who treated the complainant testified that the injuries were caused by a sharp object of uncertain material; and the complainant’s credibility was impeached in a number of important respects, such that the jury could have drawn the inference that his injuries were inflicted by a sharp edge in the stairwell, and not by a gun.  The majority’s utter refusal to engage with this evidence and instead inaccurately state that submission of the lesser would have required the jury to speculate is sad news for defense practitioners who still hold out hope for a fair shake from this Court. 
As to the second issue, Judge Rivera again convincingly showed, through meticulous discussion of the evidence at trial, that the complainant’s 911 call was “anything but spontaneous and without forethought,” and could not be dismissed as harmless on the full record.
Finally, the Almonte decision, like the Cummings decision [People v. Twanek Cummings, 31 N.Y.3d 204 (2018)] before it, invites a challenge by trial practitioners to the very foundation for excited utterances.  Both the majority and Judge Rivera declined to address this unpreserved issue.  Judge Rivera advised defendants to develop a record below as to the “state of the science” with respect to our evolving understanding of an individual’s capacity to fabricate under stressful conditions.  We urge trial practitioners to object to evidence proffered under the excited utterance exception to the rule against hearsay as based on discredited assumptions about the reliability and accuracy of such out-of-court statements, and ask for a hearing on the matter.  (See CAL’s July edition of Issues to Develop at Trial for a fuller discussion of this challenge). 
Decided on June 25, 2019
The People v. Derrick Ulett
Issue before the Court: Whether a surveillance video capturing the scene of a shooting was material such that the prosecution’s failure to disclose it constituted a Brady violation. The video depicted a central eyewitness at trial, the victim, a possible third party, and potential other witnesses. The prosecution had reviewed the video pre-trial but had not turned over the evidence to the defense, then suggested to the jury that no such video existed.
Held: In an opinion authored by Judge Garcia, the Court held that this violated Brady and that Mr. Ulett had not received a fair trial. Accordingly, it vacated the conviction, which had been challenged by way of a C.P.L. § 440.10 motion, followed by a hearing at which trial counsel asserted she would have used the video to impeach the main eyewitness, to pursue a third-party culpability theory, and to identify other witnesses.
CAL Observes: This was rare unanimous ruling for the defense. Animating that finding (and distinguishing this case from People v. Guica, also decided this month), might have been the outrageous conduct of the prosecution, which actively misled the jury about the nonexistence of video surveillance. Similarly, the prosecution’s suppression of the evidence precluded the defense from pursuing several important avenues. On the other hand, the facts were fairly unremarkable, and the Court characterized the evidence against Mr. Ulett as “substantial.” The 440 court had found that the third-party theory was speculative and the defense view of the video unreasonable; while the video was useful for impeachment, the 440 court continued, its value for that purpose would not have changed the outcome of the trial. The Court of Appeals disagreed on materiality, reversing Ulett’s conviction even under the less exacting “reasonable probability” standard that governs where the defense makes no specific request for the material.
Decided on June 25, 2019
The People v. Edward Malloy
Issue before the Court: Whether the trial court erred in denying the defense’s Batson motion after controverting the race-neutral demeanor evidence proffered by the People?
Factual Background: The prosecutor based his peremptory challenge of a Black female juror on the juror’s “attitude.” When the court pressed him to be more specific, he described the juror’s tone of voice as “dismissive” and “rude.” The court challenged this perception, stating: “I sat and listened to her myself and I would not define [her tone of voice] as dismissive and rude.” The court went on to state that the prosecutor had given “nothing other than ... conclusions,” and that it did not “see the attitude that [the prosecutor was] suggesting.” It further challenged the prosecutor’s dissatisfaction with the juror’s answer to his question concerning her possible jury service. Nevertheless, after describing it as a “close call,” the court ultimately denied the defense’s Batson challenge.
Held: Decided unanimously on SSM, the Court of Appeals determined that there was record-support for the trial court’s resolution of the Batson issue.  
CAL Observes: Here, 1 + 1= 3. We are left to wonder where exactly the record-support for the trial court’s decision can be found, because the Court of Appeals afforded all of four sentences to this issue, none of which reckoned with the underlying facts. The decision is particularly mystifying in light of the trial court’s very explicit skepticism towards the prosecutor’s proffered rationales. 
We already know that Batson has not put an end to racial discrimination in jury selection. Unfortunately, this decision further dilutes its power. It sets precedent for appellate rubber-stamping of Step 3 determinations, regardless of whether they actually comport with the record. It seems that lower courts can explicitly contest every rationale the prosecutor offers, and nevertheless implicitly find those reasons credible. 
Animating this decision is likely the weakness of the prima facie case of discrimination. Although this analysis was absent from the Court of Appeals decision, the Third Department appeared to be greatly influenced by the fact that the prosecutor had not challenged any of the Black jurors in the previous panel. Although the law is clear that Batson prohibits the discriminatory strike of even one prospective juror, the courts clearly did not feel comfortable attributing “racial animosity” to the prosecutor under these circumstances. 
Decided on June 13, 2019
The People v. David Mendoza
Issue before the Court: Is a lawyer who deliberately concedes his client’s guilt at trial, relying solely on a jury nullification argument, ineffective?
Held: Not on this record.
CAL Observes: In this short opinion, rather than actually deciding the issue, the Court resorted to its familiar “it-could-have-been-strategy” refrain. 
The facts of this case led the members of the Court unanimously to the most boring and unhelpful of all possible outcomes. Those judges in the anti-criminal-defendant majority had no trouble finding the record insufficient. Those in the pro-criminal-defendant minority, who might cheer counsel’s bold arguments that jurors should “join the fight” for his client in this “overcharged” burglary case, would be loathe to officially vote that such a strategy was unreasonable. The result was a short decision affirming the conviction with a footnote reminding the defendant that he could pursue his claim through a 440.
This case (and the other “Mendoza”-related ineffectiveness case decided the same day, see People v. Lopez-Mendoza) highlights the necessity of expanding the record on ineffectiveness claims, even where it seems obvious that the lawyer’s actions (conceding guilt!) could not possibly have been motivated by reasonable strategy.
Decided on June 13, 2019
The People v. Jaime Lopez-Mendoza
Issue before the Court: Is a lawyer ineffective for failing to review, or comprehend, surveillance video and then advancing a defense theory contradicted by that video?
Held: Not on this record.
CAL Observes: No matter how ineffective counsel seems on the record, this Court will find room for doubt. 
The record in this case screamed ineffectiveness. Counsel blindly adopted his client’s theory, and promised the jury that his client would testify, even after the prosecutor forewarned that video surveillance proved that theory false. After the surveillance was played at trial, counsel advised that defendant would not testify. Counsel also basically admitted he didn’t even watch the video. Then, in summation, counsel argued a version of the facts inconsistent with what he described in his opening. 
By holding that the record did not “conclusively establish” ineffectiveness, the Court (except for Judge Rivera) emphasized its strong reluctance to pass judgment on counsel’s strategic decisions, if any, without full “exploration” via a CPL 440.10 motion. This case (and the other “Mendoza”-related ineffectiveness case decided the same day, see People v. David Mendoza) highlights the necessity of expanding the record on ineffectiveness claims, even where it seems obvious that the lawyer’s actions (pursuing a theory you’ve been warned would be exposed as false) could not possibly have been motivated by reasonable strategy. But the Court’s “judicial restraint,” coupled with the practical challenges of meaningfully exploring these issues via 440, operate together to effectively condone some pretty egregious lawyering. 
Separately, every member of the Court found harmless that admitting defendant’s DNA profile through an analyst who did not generate the profile was harmless.
Decided on June 11, 2019
The People v. John Guica
Issue: Whether the prosecution violated its Brady obligations by failing to disclose favorable impeachment evidence concerning the jailhouse informant’s pending burglary conviction and through its failure to correct false or misleading testimony provided by the witness at trial.
Held: While the evidence should have been disclosed, there was no reasonable possibility of a different outcome.
Factual Background: In this high profile murder case, the prosecution called several of the defendant’s friends to testify that he had made a series of incriminating statements about the murder.  He said that he had provided the gun and disposed of the weapon.  The prosecution also called a jailhouse informant, JA, who presented a different version of Giuca’s participation-- that he confessed to taking part in the robbery and shooting that resulted in the victim’s death.
JA had pleaded guilty to burglary and received a drug treatment program.  At trial he claimed he was doing “good” in the program, had suffered a single relapse, and denied that any favorable treatment had resulted from his testimony against Giuca.
Defense counsel was able to elicit that JA was a career criminal and that he had violated the terms of his plea but was given multiple chances at drug treatment, including after he absconded from the program.  On re-direct, the prosecution elicited that a prosecutor and counselor had spoken with the judge at the appearance following JA’s absconding, but the prosecutor did not reveal that she personally had spoken to the judge that day.  The prosecution denied there was any specific promise of consideration for JA’s testimony.
In a subsequent 440, JA affirmed that there was an agreement between himself and the prosecution.  The defense also alleged that the prosecution had violated Brady by not identifying herself as the person who had intervened on JA’s behalf after he absconded from the program and by not correcting his misleading testimony that he had done well in the program.  The trial prosecutor testified that there was no formal agreement with JA concerning his testimony.  Ultimately JA received the maximum sentence under his plea deal as a result of his failure to complete the program.  The 440 court denied the motion,  refusing to credit JA and found there was no reasonable possibility that the information about the prosecutor’s personal intervention or correcting JA’s testimony about his success in the program would have changed the outcome.
The Appellate Division reversed finding the prosecution violated Brady by failing to disclose the prosecutor’s personal appearance on JA’s behalf, and to correct JA’s misrepresentations about his progress in the program being “good.”
The Court of Appeals reversed and reinstated the conviction,  finding that the 440 court properly ruled there was not reasonable possibility the disclosures would have changed the outcome.  Justice DiFiore, writing for the majority, went on to observe that “a witness’s wholly subjective hope of favorable treatment, in the absence of any objective circumstances that reasonably substantiate the witness’s expectation cannot unilaterally form the basis of a tacit understanding,” While the majority recognized that the undisclosed evidence would have allowed the defense to deepen its argument that JA was testifying falsely, it found that the impeachment evidence was largely cumulative and therefore there was no reasonable possibility of a different outcome.  The defense had made the jury aware that JA continued to be released despite violating the terms of his drug treatment program.  While the prosecutor should have clarified the record concerning the prosecutor’s role in intervening on JA’s behalf, these lapses did not warrant reversal.
Rivera in dissent rejected the majority’s finding that the suppressed evidence was cumulative because the jury did not learn the extent of the prosecutor’s ongoing intervention on JA’s behalf.  The suppressed information would have provided the defense with critical information to dispute JA’s motives in testifying.  These were particularly egregious violations of the prosecutor’s ethical standards.
CAL Observes: Once again, the prosecution gets away with Brady murder.  Where egregious violations of ethical standards can be hidden behind the materiality standards, it only encourages prosecutors to suppress exculpatory evidence.  At the very least the Court of Appeals forgiveness does not encourage prosecutor’s to carefully consider their ethical obligations and err on the side of disclosure.  Also, the Vilardi “reasonable possibility” standard is supposed to be the least forgiving of the Brady standards rendering suppression rarely if ever excusable.  
Looking for some brightness in this dark decision, the Court reaffirmed that negligent as well as deliberate disclosure can deny due process, citing People v.Simmons, 36 N.Y.2d 126 (1975).  Also, practically speaking, the jury probably did know that the jailhouse informant was not testifying out of the goodness of his heart in light of his criminal history.  But the willingness to excuse the prosecution’s misconduct here is, shall we say, disappointing.
Decided on June 6, 2019
The People v. Samuel J. Smith
Issue before the Court: Was the defense entitled to a missing witness charge where the defense argued that the witness was under the People’s control and had material testimony to offer on the issue of identification?  The Appellate Division had held that supreme court’s denial of the charge was not an abuse of discretion because the defendant failed to meet his “initial, prima facie burden of showing that the testimony of the uncalled witness would not be cumulative of the testimony already given.” 
Held: In a rare unanimous reversal in an opinion by Judge Feinman, the Court held that the Appellate Division (4th Department) screwed up the respective burdens.  Reaffirming its seminal decision in People v. Gonzalez, 68 N.Y.2d 424 (1986), the Court stated that the party opposing the charge has the burden of “demonstrating that the charge would not be appropriate,” by, for example, “demonstrating that the testimony would be cumulative to other evidence.”  The Court pointed out that placing the burden on the proponent of the charge made no sense since that party typically lacks the information necessary to know what the uncalled witness would say while the party opposing the charge is in a superior position to demonstrate cumulativeness. Under the circumstances of this otherwise one-witness ID case, the error was not harmless. 
CAL Observes: A reminder to go back to original sources and not be deterred by lines of bad Appellate Division law.  The Court of Appeals cited (and rejected) the numerous Appellate Division decisions, including from the First Department, that had placed the initial cumulativeness burden on the proponent of the missing witness charge. However, it is somewhat disheartening to note what it takes to win a unanimous reversal: Court of Appeals law directly on point, in the defendant’s favor.  Short of overruling Gonzalez, it’s difficult to imagine how the case could have come out otherwise.  Note that leave had been granted by the Appellate Division dissenter; the Court of Appeals had previously denied leave in the prior Appellate Division cases where, it stands to reason, appellate practitioners had challenged the misallocation of burdens.     
Decided on June 6, 2019
The People v. Kendel R. Gregory
Decided on June 6, 2019
The People v. Monique Esposito
Decided on May 9, 2019
The People v. Vincent Meyers
Decided on May 7, 2019
The People v. Fidel Vega
Issue before the Court: Does the use of a dangerous instrument require a justification instruction on deadly physical force, not ordinary force?
Held: A conviction for assault with a dangerous instrument necessarily determines that the defendant employed deadly, not ordinary, force.  Thus a justification charge may only be given if a reasonable view of the evidence supports the deadly force justification charge.
Discussion: Both defendants were convicted of Assault ^2 by means of a dangerous instrument (a belt in Vega and a glass in Rkein), and both requested a justification instruction.  Under PL 35.15, a defendant is entitled to this instruction as long as a reasonable view of the evidence supports the theory that the defendant reasonably believed physical force was necessary to avert the imminent use of force against himself or someone else.  Where a defendant has used deadly physical force, however, he must have reasonably believed that the other person was using or was about to use deadly physical force as well.
Defense counsel argued in Vega that the trial court’s instruction that if the jury found Mr. Vega guilty of assault with a dangerous instrument, it must consider only whether he was justified in using deadly force, not ordinary force, precluded the jury from deciding the factual question of whether Mr. Vega had used ordinary or deadly force.  Further, the charge had improperly conflated the element of a dangerous instrument with deadly force and the justification defense, even though People v. McManus, 67 N.Y.2d 541 (1986), held that the defense should be broadly available.
Rejecting these arguments in both Rkein and Vega, the Court of Appeals held that because the jury’s conviction of assault 2 by means of a dangerous instrument “necessarily” required a finding that the defendant had used deadly force, not just ordinary force, the trial court was correct in applying the standard for deadly force justification.
CAL Observes: Misconstruing defendant’s point about the differing standards for use of a dangerous instrument and deadly force, the court in Vega acknowledged the possibility that in a “rare case” a defendant might be guilty of a crime involving the use of a dangerous instrument yet be entitled to the ordinary force instruction.  In this hypothetical the defendant would merely attempt or threaten to use an item as a dangerous instrument, and then not use it in that matter.  Judge Garcia rejected this possibility in his concurrence, pointing out that a conviction for Assault 2 requires a finding that a physical injury was caused with the dangerous instrument, not merely that the defendant attempted or threatened to do so.
The defense in Vega also presented an argument that the burglary charge was legally insufficient where the victim’s bedroom inside of the family home was not “separately secured or occupied” unit within the meaning of PL 140.02(2), but the court found the issue unpreserved.
Decided on May 7, 2019
The People v. Darryl Brown
Issue before the Court: Does displaying a firearm render a defendant the initial aggressor as a matter of law, thus precluding a justification charge?
Held: It does, unless a reasonable view of the evidence establishes that the defendant withdrew and communicated his withdrawal to the complainant, who then threatened to use or used imminent deadly force.
Discussion: The justification defense is not available to a defendant who is the initial aggressor, which is the first person who uses or threatens to use imminent physical force. See PL 35.15.  Even if the second individual is the initial aggressor with respect to ordinary physical force, another person can be the initial aggressor with respect to deadly force.  A defendant who seeks to use the justification defense for his use of deadly force cannot therefore be the first individual in the encounter to use or threaten to use imminent deadly force.
Here, it was undisputed that the defendant had been the first and only person to draw a gun, even though the decedent had later “swiped at” the gun in his hand.  The court unanimously held, as a matter of law, that drawing a gun rendered the defendant the initial aggressor.  The justification defense was therefore unavailable to him unless a reasonable view of the evidence had demonstrated that he had subsequently withdrawn from the dispute and communicated that withdrawal to the decedent before the decedent “swiped at” his gun; the court held that no reasonable view of the evidence supported this theory, even in the light most favorable to the defendant.
CAL Observes: The First Department’s opinion, reversed by the Court of Appeals, paints a much different picture of the encounter between the defendant and the decedent.  The First Department pointed out that the decedent, who was younger and taller than the defendant, had been the initial aggressor of the encounter with respect to ordinary force.   He had repeatedly swung at defendant’s face and then continued to approach him even after the defendant drew the (lawfully possessed) weapon, which was not pointed in the decedent’s direction.  Immediately before the defendant pulled the trigger the decedent, continuing to advance toward him and throw punches at his face, grabbed for the gun while making an implicit threat to use it against the defendant.  The First Department found that a jury could reasonably conclude the decedent had been about to use deadly force toward the defendant by gaining control of his gun.  The First Department also noted that the argument that persuaded the Court of Appeals—the “sweeping proposition” that by drawing a weapon a defendant becomes the initial aggressor as a matter of law—was unpreserved and without merit.
Undecided by the Court of Appeals is whether this “sweeping proposition” about the initial aggressor rule applies to dangerous instruments that are not guns.  Reading Brown together with Vega and Rkein, it may well be interpreted this way.
Decided on May 7, 2019
The People v. Hassan Rkein
See People v. Fidel Vega, above, for our commentary.
Decided on May 7, 2019
The People v. Agape A. Towns
Issue before the Court: Whether the defendant’s right to a fair trial was violated when the trial court entered into a cooperation agreement with the co-defendant, offering him a lower sentence if he “told the truth” and testified consistent with his pre-trial statements implicating the defendant.
Held: The trial court abandoned its neutral role, created the specter of bias and assumed the function of an interested party, so reversal was required.
CAL Observes: A refreshing confirmation that the right to a fair trial still exists. It was, however, an obvious case. The judge, in effect, acted like a second prosecutor in ensuring the co-defendant implicated the defendant here. Judge Stein, speaking on behalf of a full Court, emphasized that a fair trial before an unbiased judge and unprejudiced jury is a fundamental principle, and its violation requires no harmless error analysis. This extends to “even the appearance or taint of partiality,” reaffirming the Court’s decision in People v. DeJesus, 42 N.Y.3d 519 (1977). In a concurrence, Judge Rivera agreed with the majority vote but concluded the court’s conduct here constituted actual bias.
Decided on May 2, 2019
The People v. Nicholas Hill
Decided on May 2, 2019
The People v. Boris Brown
Decided on April 2, 2019
The People v. Alexis Rodriguez
Decided on April 2, 2019
The People v. Carlos Tapia
Issue before the Court: Whether the common law past-recollection-recorded exception to the hearsay rule operates to create an exception to CPL 670.10, which prohibits the admission of grand jury testimony when the witness is available to testify at trial, when a police officer witness takes the stand and claims he has no recollection of the events about which he testified in the grand jury. 
Held: In a 4-3 decision, with the majority written by Chief Judge DiFiore, the Court held that the trial court did not abuse its discretion in admitting the grand jury testimony as a past recollection recorded because there was a proper foundation for receipt of the evidence, essentially finding that CPL 670.10 does not apply unless the witness is unavailable, and does not otherwise limit the admission of grand jury testimony.
CAL observes: First, the makeup of the dissent and the majority reflect what has become a norm for criminal cases, with Judges DiFiore, Stein, Garcia, and Feinman, eager to rule in favor of the People, even if it means creating exceptions to clear statutory language, and Rivera, Wilson, and sometimes Fahey, willing to call out the Court’s pro-government majority. 
Second, the Court is once again sloppy with its standard-of-review language, tripping in the opinion’s second sentence when it holds that the trial court did not abuse its discretion when admitting the grand jury testimony under the past-recollection-recorded hearsay exception. Of course, whether an out-of-court statement meets the requirements of a hearsay exception, and whether there is, or should be, a non-textual exception to a statute, are questions of law, or, sometimes, mixed questions, but never questions of discretion. Once those findings have been made, it then becomes a matter of discretion for the court to decide whether the evidence’s probative value outweighs its potential for unfair prejudice. In a case where that second question was never raised, the Court does no one any favors when it collapses or conflates these rules, labeling the issue one of discretion. 
On the merits, the Court’s ruling is an outrage. As Judge Wilson reveals in his meticulous dissent, which dismantles the majority opinion, CPL 670.10, entitled “Use in a criminal proceeding of testimony given in a previous proceeding; when authorized,” prohibits the admission of a witness’s grand jury testimony for its truth when the witness is available to testify. Courts do not have the power to elevate hearsay exceptions over the Legislature’s plain statutory language, yet that is precisely what the majority did here. As it is the People who choose whom to call in grand jury proceedings, and the People who get to question those witnesses, the Court has created an exception to clear statutory mandate that favors the prosecution. At a time when the Legislature and the Governor are enacting legislative measures to rebalance the power in the courts to correct historic imbalances favoring the prosecution, the Court’s decision is not only demonstrably wrong, but badly out of step.
Decided on March 28, 2019
The People v. Timothy Martin
Decided on March 28, 2019
The People v. Omar Alvarez
Issue before the Court: Whether appellate counsel was ineffective under the state standard for: filing a cursory, poorly written brief; failing to argue excessive sentence; failing to file a leave application; and failing to communicate with his client. 
Factual Background: In the aftermath of a 1996 drive-by shooting where 19-year-old Alvarez and codefendants killed a 14-year-old and injured two fifteen-year-olds, he was convicted of first-degree conspiracy and second-degree murder, among other charges, and sentenced to an aggregate term of 66 2/3 years to life in prison. The First Department affirmed his convictions. 
In a 2017 coram nobis application, Alvarez explained that assigned appellate counsel’s sole communication with him was a one-page, two-sentence letter, sent after his case was put on the dismissal calendar. Counsel did not provide Alvarez with the briefs, notify him of the Appellate Division’s decision, or seek leave from the Court of Appeals. Moreover, counsel submitted a low quality brief that did not challenge the length of Alvarez’s sentence.  
Held: In a 5-2 decision penned by Judge Stein, the Court held that appellate counsel’s deficient performance did not compromise the fairness of Alvarez’s appeal and was therefore effective under the state standard. Given the “heinous nature” of Alvarez’s crimes and his “lamentable behavior and lack of remorse at sentencing . . . it [could not] be said that appellate counsel lacked a sound, strategic reason to forgo pursuing a discretionary reduction of defendant’s sentence that had little chance of success.” The court conceded that counsel’s appeals brief was “somewhat terse,” poorly drafted, and “not a model to be emulated,” but determined that the brief still demonstrated counsel’s “grasp of the relevant facts and law.” Because Alvarez only sought the opportunity to argue for a sentence reduction, he had effectively “concede[d]” that the other issues raised in counsel’s brief would have “fared no better,” even if “championed more effectively.” Appellate counsel’s failure to file a criminal leave application did not, alone, constitute ineffectiveness, and Alvarez identified no issue that could or should have been raised therein. As for counsel’s lack of communication, the “unsupported allegations” in Alvarez’s affidavit were insufficient to sustain his burden of proof. 
CAL Observes: While giving lip service to the “greater protection” afforded by this State’s ineffectiveness standard, the majority articulated a shamefully low bar for effective appellate advocacy: seemingly, the filing of any brief with any reviewable issues at all. Encouraging “skepticism” toward defendants who are “unable to demonstrate any prejudice,” the majority bent over backwards to excuse unacceptable representation. This decision appears to have been driven by the bad facts of Alvarez’s case rather than a neutral analysis of appellate counsel’s performance.
In a lengthy dissent, Judge Rivera excoriated the majority for “eroding our constitutional standard for effective assistance,” “import[ing] a prejudice standard” this State has “long rejected,” and “send[ing] a message to the profession that there is seemingly little to no value attached to a lawyer’s skill in advocacy.” She emphasized that counsel’s perfunctory, error-ridden brief “violate[d] every rule about effective appellate advocacy taught to law students across the country.” 
In a separate dissent, Judge Wilson argued that counsel’s failure to seek a sentence reduction was, standing alone, ineffective assistance of counsel. His opinion is a powerful affirmation of New York courts’ moral and constitutional duty to treat children differently than adults as well as a thoughtful exploration of Alvarez’s remarkable growth in the 25 years since he was sentenced. 
Decided on March 21, 2019
The People v. Perry Pendell
Decided on February 21, 2019
The People v. Emmanuel Diaz
Issue before the Court: Does DOC’s release to prosecutors or law enforcement agencies of non-privileged telephone calls made by pretrial detainees, who are notified that their calls will be monitored and recorded, violate the Fourth Amendment?
Held:  No.  Detainees informed of the monitoring and recording of their calls, have no objectively reasonable expectation of privacy in those calls.  The correctional facility can record and monitor detainees calls and share them with law enforcement without violating the Fourth Amendment.
Discussion: Diaz argued that because the Rikers  had not advised him that his calls could be turned over to the prosecution for use in his criminal case and his consent to the intrusion could be no broader than the notice provided, the disclosure of the calls to the prosecution violated the Fourth Amendment.  
Judge Feinman, writing for the majority, held that even if Diaz subjectively believed his calls would be private -- a notion belied by the record given all the forms of notice provided to Rikers inmates, – that expectation of privacy could not be deemed reasonable in light of the government’s weighty interest in ensuring a prison’s institutional security.   Given the diminished expectation of privacy in prisons, there can be no legitimate claim to Fourth Amendment protection for prisoner phone calls.   The Court noted that any challenge to the “voluntariness” of the consent to the monitoring and recording of the phone calls or claims that Diaz’s rights to due process and equal protection were violated were not preserved.
Judge Wilson in a lengthy dissent, joined by Judge Rivera,  argued that “Diaz’s consent to a search by DOC, a non-law enforcement government entity, for its own security purposes cannot reasonably be construed to include consent for the District Attorney–a law enforcement entity–to search information for prosecutorial purposes.”   The dissent questioned “whether we, as a society, want to prosecute crime by jailing suspects for lengthy periods of time in relatively inaccessible locations and monitoring their calls for statements that might be used against them.”  
CAL Observes: Sadly, the Court seems untroubled by the type of society the dissent described and clueless concerning the desperation and isolation  poor people face while awaiting trial on Rikers.  Once again, the Court left a small door open to future constitutional challenges to the voluntariness of consent under these circumstances.  The way forward seems to be developing a record of an individual client’s circumstances to undercut the validity of the consent found to have been given by Diaz.
Decided on February 21, 2019
The People v. Ali Cisse
Issues before the Court:
1) Does the recording and introduction of a defendant’s Rikers Island phone calls violate New York’s or the federal wiretapping statute, New York’s constitutional right to counsel, or entitle a defendant to a voluntariness charge pursuant to C.P.L. §60.45(2)(a)?; 
2) Does a police order to “stop” and “turn around” constitute a level three seizure?
1) As defendant impliedly consented to the monitoring and recording of his telephone calls, there was no violation of the wiretapping statutes or his state constitutional right to counsel; the claim that Cisse was entitled to a voluntariness charge “because of the conditions of his confinement is devoid of record support.”
2) The Appellate Division’s holding that the officer lawfully approached to request information, not to demand that he stop and respond was based on an objective, credible reason, presenting a mixed question of law and fact.  As there was record support for that finding, it was beyond review by the Court of Appeals.
CAL Observes: The Court treated these complex issues summarily, apparently having exhausted its analytic resources on the companion case People v. Diaz (see below).  The introduction of Rikers phone calls will remain a thorn in the side of the defense bar.  This evidence is inevitably extremely prejudicial as clients are recorded discussing the facts of their cases and using language offensive to jurors.  
The Court’s resounding rejection of constitutional and statutory challenges to the introduction of this evidence means that defense counsel has to resort to carefully crafted, fact-intensive arguments that the prejudicial impact of individual statements outweighs their  probative value, an argument the Court specifically recognized as valid in People v. Johnson, when first addressing the constitutional issues.  The Court also left open whether a voluntariness charge might be necessary if record support is developed to warrant it.
Decided on February 19, 2019
The People v. Michael Thomas
Issue before the Court: For predicate felony sentencing purposes, should the court look to the date when sentence was originally imposed, even if illegal or improperly imposed, or the date of current, lawful sentence in determining whether there existed a “prior conviction”?
Held: 4-3 (Stein writing for majority; Fahey writing for dissent joined by Rivera and Wilson) the Court held that the original sentencing date controls, not the date when a lawful sentence was imposed.  The effect of the holding was to render the defendant a predicate felon.
Discussion: Thomas was improperly sentenced in 1989 as a second felony offender based on two 1988 youthful offender adjudications.  The 1989 convictions were then used as predicates for a 1993 second felony offender adjudication and, eventually, a persistent felony offender adjudication.  In 2008 and 2011, Thomas was resentenced on the 1989 convictions as a first felony offender.  He then argued that those resentencing “unsequenced” the convictions for purposes of predicate sentencing.
Decades of precedent supported defendant’s argument that “sentence” as used in Penal Law § 70.06(1)(b)(ii) – as well as the other predicate sentencing statutes – meant lawful sentence and, therefore, meant the resentencing date controlled.  Even the Court of Appeals’ past decisions (namely Boyer (2013) and Thomas (2016)) supported that view, albeit those cases carved out exceptions for Sparber resentencings and VOP resentencings.  Yet, the Court held otherwise, finding that the legislative intent in using “sentencing” and not including “resentencing” in the statute indicated that the original, unlawful sentence was the appropriate date to use.  According to the majority, that result comported with the legislative purpose and promoted clarity and fairness.
The dissent believed otherwise, arguing that a unlawful and vacated sentence was entitled to no legal effect.  “Sentence,” the dissent argued, must mean a lawful and valid sentence.
CAL Observes: This case highlights how activist and anti-defendant the Court of Appeals has become.  This area of law had long since been settled by all of the Appellate Divisions with seeming support from the Court’s own decisions.  There was no conflict or split worthy of the Court’s review.  Yet, the Court showed little difficulty (aside from the 4-to-3 vote) in casting those decades of decisions aside.
The bases for the Court’s decision are tenuous.  To be sure, in one statute (dealing with appeals), the legislature distinguished between a sentencing and a resentencing, but in every other statute, governing every aspect of sentencing, the legislature just referred to “sentencing” despite the clear applicability of those statutes to resentencings.  Moreover, the new rule does not promote clarity or minimize litigation.  What constitutes an illegal sentence that is valid for predicate sentencing purposes?  Can it be a proceeding where defendant is not present?  Can it be a proceeding where the court neglects to pronounce the sentence?  Or is it simply anything that the court clerk decides to label a sentencing regardless of who was present or what was said, as long as a commitment order was generated by the clerk at the end of the proceeding?  Those issues now all await litigation.  In addition, this decision will not stop the efforts to unsequence prior convictions.  Instead of filing a C.P.L. § 440.20 motion for resentencing (as Thomas did here), he could have moved under C.P.L. § 440.10 to vacate the plea.  After all, surely counsel was ineffective in advising him that he was a predicate offender based on his youthful offender adjudications and surely Mr. Thomas’ plea was unknowing and involuntary as he did not understand the actual sentencing range that he faced upon conviction.
Decided on December 13, 2018
The People v Alex Flores, Lucio Ramirez, Benigno Aguilar, and Emmanuel Flores
Issue before the Court: Whether a trial court has the authority to empanel an anonymous jury.
Held: Maybe: the Court dodged the question of whether a trial court may “anonymize” jurors, finding that, assuming the court had the authority for such an “extraordinary procedure,” the court did so here without any factual predicate. 
CAL observes: Before the trial began in this multi-defendant Orange County gang assault case, the court advised the parties that it intended to withhold the names of prospective jurors and identify them by number instead. Announcing names, the court believed, discouraged jury service, and made jurors feel “uncomfortable,” based upon having “been doing this for almost 22 years ....” When defense counsel objected, the court responded that neither defendants nor their attorneys had a constitutional right to “actually know the names of the jurors,” and proceeded through jury selection identifying the jurors by number. 
On appeal, the Second Department held that CPL 270.15 prohibits a trial court from withholding the names of prospective jurors: the plain language of CPL 270.15(1)(a) provides that prospective jurors’ names be called. While CPL 270.15(1–a) allows for the issuance of a protective order regulating disclosure of addresses, it does not allow for the issuance of a protective order regulating disclosure of names. Not only did the court err in anonymizing the jury, the Second Department held, but defendants were entitled to a new trial as a remedy for the error, because “[e]mpaneling an anonymous jury creates a potential for prejudice.” 
While the Court of Appeals affirmed, it declined to carve out a rule that the CPL prohibits anonymous juries. Instead, in its brief memorandum opinion, the court “assumed” that trial courts had such a right “under certain circumstances.” While the Court labeled such a step an “extraordinary” one, it nonetheless seemed to sanction its possible availability.
Decided on December 13, 2018
The People v. Brian Hakes
Decided on December 13, 2018
The People v. Doran Allen
Issue before the Court: Where the prosecution failed to obtain court authorization before re-presenting the case to a new grand jury and securing a separately indicted count of murder (in violation of Wilkins and Credle), was reversal the proper remedy on appeal where, at trial, the jury acquitted of the unauthorized murder count but convicted the defendant of manslaughter, a count in the first indictment.  
Held: Reversing the Appellate Division’s majority opinion and essentially agreeing with Justice Kahn’s dissent, the Court held that “spillover” analysis, and not “Mayo” analysis applied to determine whether appellant was prejudiced by the presence of the defective murder count in his trial.  In People v. Mayo, 48 N.Y.2d 245 (1979), the prosecution brought the defendant to trial a second time under the original indictment, which included a top count of robbery in the first degree, and included offenses, even though the court had found insufficient evidence of first-degree robbery at the close of the People’s case at the first trial.  Explaining its decision in Mayo, the Court stated that there, it had found that the retrial violated double jeopardy and that the second trial was a “nullity” which should never have occurred.  Under those circumstances, harmless error did not apply.  Spillover analysis — asking whether the presence of the tainted count that should have been dismissed led to the admission of otherwise inadmissible or prejudicial evidence — was the appropriate rubric here, which involved no double jeopardy or preserved constitutional claim. The Court rejected appellant’s arguments that the defense was impacted by the presence of the murder count, and concluded that there was “no reasonably possibility that the presence of the murder count during trial influenced the jury’s decision to convict defendant on the manslaughter count in any meaningful way.”  Judge Rivera concurred in the “spillover” analysis but disagreed with the Court’s Credle discussion, in which it found that dismissal of the murder count was required because there was at least “a mere possibility of prejudice” from the failure to obtain court permission.  Judge Rivera did not agree that prejudice played any part in the analysis. 
CAL Observes: Even the judges who more reliably see things our way signed on to this restrictive harm analysis. Although this case is something of a one-off, it does not bode well in terms of the Court’s receptiveness to alternative “harm” analyses and spillover arguemnts generally. The Court, for example, dismissed the factual arguments appellant had made to show how the defense was affected by the presence of the murder count, where the Appellate Division majority, by contrast (hardly a friendly court), had no problem concluding that even if spillover applied, “[d]efense counsel’s strategy was no doubt affected by the need to present an effective defense to the more serious charge” 
Decided on December 11, 2018
The People ex rel. Erick Allen v Bruce Yelich
Decided on December 11, 2018
The People v. Frederick Diaz
Decided on November 27, 2018
The People v. Damian Jones
Issue before the Court: Whether, in a prosecution against the defendant for enterprise corruption, the prosecution presented sufficient evidence that defendant had knowledge of the existence of a criminal enterprise and intended to participate in its affairs? 
Held:  No.  Although the defendant participated in three requisite criminal acts, critical trial evidence showed that the defendant was “isolated from — rather than employed by or associated with — the enterprise, and that defendant acted independently on his own behalf, with the singular purpose of serving his own interests.”  Accordingly, the prosecution failed to present legally sufficient evidence to satisfy the mens rea element of enterprise corruption.  Concurring, Justice Rivera  agreed that the People failed to establish sufficient evidence of the defendant’s mens rea, but reached that conclusion “for the more fundamental reason that defendant cannot have knowledge of a nonexistent criminal enterprise.” 
CAL Observes: This was a unanimous and brief memorandum (in result) decision.  The big-ticket item here is Judge Rivera’s informative 24-page concurrence that provides a useful primer on New York’s “Baby RICO” statute, called the Organized Crime Control Act.  Penal Law § 460.20 is the class B felony of enterprise corruption, created under the OCCA.  The OCCA is aimed at reaching the higher-ups who run the organized entity. These actors are otherwise difficult to prosecute under existing laws because they are insulated by the complex organizational structure they’ve created to carry out the crimes.  Legitimate businesses are often  infiltrated for this purpose. Here, the defendant was prosecuted in a purported motorcycle theft, where another individual would distribute the cycles defendant stole.  Although the sales followed a typical pattern, the defendant stole the bikes without direction from a superior, and there was no hierarchy of authority or a system of ascending commands that directed and approved of its members’ actions.           
Decided on November 27, 2018
The People v. Saylor Suazo
Issue before the Court: Whether a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation is entitled to a jury trial even if the potential incarceratory sentence is less than six months, the presumptive dividing line between serious and petty offenses under the Sixth Amendment.
Held: Defendant was entitled to a jury trial, even though the crimes for which he was charged, class-B misdemeanors, carried a maximum Penal Law sentence of three months’ incarceration, because the potential consequence to defendant should he be convicted—deportation—made them serious within the meaning of the Sixth Amendment.
CAL observes: New York City defendants, unlike those in the rest of the State, are not statutorily entitled to jury trials if they are charged with nothing more serious than class-B misdemeanors. CPL 340.40(1). The Sixth Amendment right to a jury trial does not automatically attach to those charged with class-B misdemeanors, because the maximum Penal Law sentence is three months’ incarceration. The presumptive threshold for a jury trial under the Sixth Amendment is six months’ imprisonment. Under the Sixth Amendment, then, NY City defendants facing class-B misdemeanors are not ordinarily entitled to jury trials. 
NYC prosecutors routinely exploit this option, reducing class-A misdemeanor charges to class-Bs on the eve of trial, thereby depriving defendants of jury trials, a practice that has been approved by the New York Court of Appeals. See People v. Urbaez, 10 N.Y.3d 773 (2008).
In Suazo, the Court recognized that, at least for a noncitizen defendant, the three-month-maximum jail sentence might be the least of defendant’s worries, as many class-B convictions carry the drastic non-penal consequences, including deportation. 
Further litigation of the issue is likely to focus on, among other things, the showing a noncitizen must make to invoke Suazo’s jury trial right. In the opening sentence of her majority opinion, Judge Stein stated the rule broadly, requiring defendant to show only the possibility of deportation, not that it would be certain, or even likely, should defendant be convicted: “Today, as a matter of first impression, we hold that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation—i.e. removal from the country—is entitled to a jury trial under the Sixth Amendment” (italics added). The decision does not require that defendant show s/he will be deported, only that a charged crime carries the potential for deportation. Judge Stein later noted that a noncitizen “may be deported, or forcibly removed from the country, if convicted of a variety of crimes, including a ‘crime of moral turpitude’ under certain conditions, an ‘aggravated felony,’ most controlled substance offenses, various firearm offenses, ‘[c]rimes of domestic violence, stalking, or violation of [a] protection order, [and] crimes against children’” Although Mr. Suazo showed that at least one of the charges he faced was classified as a “deportable” offense, that was not a requirement for a jury trial; defendant need only show that a conviction might lead to deportation.
Decided on November 20, 2018
The People v.Tamarkqua Garland
Decided on November 20, 2018
The People v. Rodney Watts
Issue before the Court: Are event tickets the type of “instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status” such that a person can be prosecuted for second-degree criminal possession of a forged instrument (Penal Law § 170.25) for possessing a ticket?
Held: Yes.
CAL Observes: The court initially framed the question here as whether concert tickets were more alike in kind to a “revocable license,” as long-standing case law had established, and thus not conferring heightened criminal liability on those who might unlawfully possess them, or to the other instruments enumerated in the second-degree forgery statute, whose definition was incorporated by reference in Penal Law §170.25. Those instruments included things like deeds, wills, contracts, commercial instruments, and credit cards. Ultimately, the Court found that under either theory, Mr. Watts’s argument that his conduct did not come within the felony-level forged instrument proscriptions could not prevail. First, a revocable license does not mean no important legal rights are conferred on the holder such that its unlawful possession can be proscribed by the Penal Law. Second, even if the instrument must be found similar to the other enumerated instruments in the second-degree forgery statute, a concert ticket would fit that bill. In so finding, the Court effectively sanctioned broad interpretation of this statute, notwithstanding principles of statutory construction that might counsel for prosecutorial circumspection. But, perhaps some limitation comes from the Court’s penultimate paragraph, which finds concert and sports tickets critical to New York’s culture and economy: possessing an instrument that is not enumerated but also not so interwoven in the State’s economic life as a ticket is might not create felony liability.
Decided on November 20, 2018
The People v. Rohan Manragh, Jr
Issue before the Court: Whether a defendant’s guilty plea automatically forfeits an appellate claim that the integrity of the grand jury proceeding is impaired by the prosecutor’s refusal to ask the grand jury to vote on whether to call a witness that the defendant requested.
Held: The 5-2 majority dodged this threshold issue, not deciding it.  Instead, the majority looked at the merits of the defendant’s claim, decided that the prosecutor erred but, under the particular facts of this case, the integrity of the process was not constitutionally impaired because the witness’s proposed testimony would not really have been helpful to the defense, and thus held the claim “forfeited” by the guilty plea.  Judge Rivera, joined by Judge Fahey, concurred in the result, agreeing with the majority as to their view of the merits.  The dissent noted that the majority had dodged the threshold issue–to wit, does such a claim survive a guilty plea, instead putting “the cart before the horse.”  The dissent would have held that such an issue is not forfeited by the guilty, even if it loses on the merits upon the facts of a particular case.
CAL Observes: Under People v. Pelchat, 62 NY2d 97 (1984), a claim going to the integrity of the grand jury process, such as this one, survives a guilty plea.  The dissent is thus correct.  The majority’s dodging of the threshold issue is not comprehensible.  The majority decision is completely unhelpful to future litigants.
Decided on October 23, 2018
The People v. Steven Baisley
Decided on October 23, 2018
The People v. Jakim Grimes
Issue before the Court: Is coram nobis relief available, under the State Constitution, to cure defense counsel’s failure to make a leave application to the Court of Appeals? NO.
Factual Background: In November 2015, the Appellate Division, Fourth Department affirmed Jakim Grimes’s conviction. As later admitted by assigned counsel, the lawyer told Mr. Grimes that he would ask the Court of Appeals for leave to continue the appeal in that court. Counsel, however, never filed the leave application and later admitted that the case was closed by mistake. When Mr. Grimes later contacted the lawyer to find out what had happened, the lawyer discovered his error.  By that time, however, not only had the 30-day deadline for a leave application passed, C.P.L. § 460.10,  but counsel had also just missed being within the one-year grace period under C.P.L. § 460.30 to seek permission to file a late leave application. So counsel tried filing a coram nobis motion in the Appellate Division arguing that the defendant had been denied his constitutional rights. The Appellate Division denied the motion but a judge granted permission to appeal the coram nobis denial.
Held: In a 5-2 decision, the Court held that coram nobis relief was unavailable because defendants have no constitutional right to legal representation on the criminal leave application, 32 N.Y.3d at 319. “[I]n the absence of a violation of a constitutional right, coram nobis does not lie.” 32 N.Y.3d at 304. 
This holding was an extension of a prior decision in People v. Kruger, 23 N.Y.3d 605 (2014), where the Court came to the same legal conclusion as a matter of federal constitutional law. 
In affirming, the Grimes majority distinguished People v. Syville, 15 N.Y.3d 391 (2010), where a coram nobis motion was permitted to cure a lawyer’s mistake in not filing a timely notice of appeal to the Appellate Division. Individuals in New York State have an automatic right to appeal their criminal convictions to the “first tier” of appellate review – generally, the Appellate Division or the Appellate Term. For such as-of-right appeals, there is a constitutional right to counsel. 32 N.Y.3d at 311, citing Douglas v. California, 372 U.S. 353 (1963).  In contrast, second-tier appeals to the Court of Appeals are available only by permission and there is no constitutional right to counsel on a second-tier appeal. By extension, there can be no claim of ineffective assistance of counsel on a second-tier appeal.
CAL Observes: In the majority opinion, Chief Judge DiFiore emphasized that Court of Appeals’ review is not geared towards determining whether there has been “a correct adjudication of guilt,” but rather whether the case involves legal principles of major significance. 32 N.Y.3d at 313. Moreover, to pick out cases that meet that criteria, it’s not really necessary to have a lawyer prepare the leave application. The Court gets the record from the Appellate Division along with the Appellate Division opinion and the previously-filed briefs. These materials, supplemented perhaps by a pro se litigant’s own submission, give the Court an adequate basis for its decision to grant or deny further review. 32 N.Y.3d at 312-13, quoting Ross v. Moffitt, 417 U.S. 600, 615 (1974). The Chief Judge didn’t address the problem that Mr. Grimes did not know that his lawyer had not filed a leave application and so the Court never reviewed the record from the first-tier appeal. 
Judge Wilson, in dissent, stressed that the Rules of the Court of Appeals require lawyers to file a leave applications in criminal appeals, if requested by the client. 32 N.Y.3d  at 321. Indeed, a criminal defendant has a right to have his or her lawyer file a leave application to the Court of Appeals – that is not discretionary. 32 N.Y.3d at 325. Moreover, Judge Wilson took issue with the majority’s position that Court of Appeals judges “do not need the parties’ lawyers to assist us in determining when to grant leave” and he reviewed the many challenges of the criminal leave application process. 32 N.Y.3d at 323. Judge Wilson concluded,
Even if our Court is concerned more with “matters of public import” than “errors in individual cases,” . . . the assistance of counsel is essential not only to insure the rights of the individual, but for the protection and well-being of society was well. . . . It is also just plain weird to say that we require appointed counsel to prepare [leave applications] but refuse to hold counsel to minimal standards of professional conduct, leaving defendants (and this Court) to suffer the consequences.
32 N.Y.3d at 336.
Decided on October 16, 2018
The People v. Raymond Crespo
Issue before the Court: When does a trial commence for purposes of the timeliness of a defendant’s motion to represent himself pro se at trial?
Held: A jury trial commences “when jury selection begins.”
CAL Observes: This is yet another blow to defendant’s rights, championed in a 4 to 3 decision by the Chief Judge herself, while displaying no hesitation to set aside 40 years of precedent to do so. 
In the seminal case of People v. McIntyre, 36 N.Y.2d 10 (1974), the Court of Appeals had established a three-pronged analysis for deciding when a defendant in a criminal case may invoke his or her constitutional right to proceed pro se : (1) the request must be unequivocal and timely asserted; (2) there must have been a knowing and voluntary waiver of the right to counsel; and (3) the defendant must not be engaged in conduct which would prevent the fair and orderly exposition of the trial. Id. at 17.  In McIntyre, the defendant made his request in the midst of jury selection, which was not determined to defeat his claim, and that has been the case in numerous cases since McIntyre
Judge DiFiore’s decision in Crespo dismisses the timeliness issue in McIntyre and other cases as dicta, and instead relies on a change from the old Code of Criminal Procedure definition of trial as beginning with opening statements, which was the law at the time of the trial here, to the newer Criminal Procedure Law definition under CPL 1.20[11], that the trial begins with “the selection of the jury.”  The Court concludes that this language means not after the jury is selected, but with the beginning of the selection procedure itself.  In Crespo, the defendant, who had requested but been denied new counsel repeatedly, had only first asked to represent himself pro se during jury selection. The Court thus held this to be an untimely request that was properly denied by the trial court.  
In a strong dissent, Judge Rivera, joined by Judges Fahey and Wilson, chided the Court for overturning well-established Court of Appeals precedent for virtually no reason other than that the composition of the Court has changed and they prefer a different rule. Judge Rivera opined that the plain meaning of the C.P.L. definition that a trial begins at the time of  “the selection of the jury” should mean after the jury has been selected, not during the process itself. The majority decision only causes further confusion as to when that begins: when the jurors are on their way up to the courtroom, in the hallway, or at some other point? 
The dissent notes that no actual problem was identified from the old rule; in fact, jury trials are occurring much less often these days than when McIntyre was decided, and the number of cases where this issue is implicated is small. Judge Rivera also delivers a nice lesson on Bluebook usage to Judge DiFiore as to the meaning of the citation “See” in footnote one of her dissent.
Judge Rivera also underscored the irony in Judge DiFiore’s use of People v. Antommarchi, 80 N.Y.2d 247 (1992), to limit a defendant’s constitutional right to appear pro se, when Antommarchi itself was intended to expand the rights of defendants.   
Decided on October 11, 2018
People v. Marvin Drelich
Decided on September 13, 2018
The People v. Alexis Sanchez
Issue before the Court: Whether the Appellate Division applied the wrong weight-of-the-evidence standard when it alternately looked to the “two-step approach” of People v. Bleakley “wherein the court must (1) ‘determine whether, based on all the credible evidence, an acquittal would not have been unreasonable[;]’ and (2) ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’” but also cited cases requiring a finding that the jury’s verdict be “manifestly erroneous or plainly unjustified” before it will overturn a conviction.
Held: While the Court, in a memorandum decision, affirmed the conviction upon finding that the Appellate Division had muddled its way to the correct standard, it nonetheless took the opportunity to advise the intermediate court that aspects of the legal standard that it had appeared to incorporate into its decision should not be followed. 
CAL Observes: The Court correctly reminded the Appellate Division that it has de novo review power when assessing weight of the evidence, which means that it can substitute its own credibility determinations. There need be no finding of “manifest[] erro[r]” for it to do so.
Judge Wilson, in dissent, describes this principle nicely: “An appellate court’s obligation to ‘weigh the probative force of conflicting testimony and the relative strength of  conflicting inferences’ is mandatory and nondelegable; it cannot be abdicated to the jury below, even in the exercise of the appellate court’s own discretion.” But, unlike the majority, Judge Wilson would remit the case to the fact-finding court for application of the clarified standard. This is undoubtedly correct. Just as the Appellate Division will not hesitate to remand cases for resentencing where it appears that the trial court misapprehended a defendant’s sentencing range, even if it arrived at a lawful result, remittal to the Appellate Division would ensure that, in Judge Wilson’s memorable words, the court of law is not left to “disassemble” the “soup” of the intermediate court’s decision “to find the meat.”
Decided on September 13, 2018
The People v. Omar Xochimitl
Issue before the Court: Whether the police, effectuating a warrantless arrest of the defendant inside his home, received voluntary consent to enter the apartment.
Held: On SSM, with two judges concurring, the court held that whether there was voluntary consent was a “mixed question of law and fact,” and –although whether there really was consent was “open to dispute” – the hearing court’s finding was supported by the record; hence, they affirmed.  The majority deemed unpreserved the interesting issue in the case: whether the arrest was unlawful because the police went to defendant’s home with the intent of making a warrantless arrest.
CAL Observes: The two concurrers, Judges Rivera and Wilson,  agreed in separate concurrences  that the interesting issue was indeed unpreserved.  They each urge, however, that an arrest by police is unlawful if effected with the intention of making warrantless arrest in the home.  Their reasoning is laid out in their separate opinions in People v. Garvin, 30 NY3d 174 (2017). Would any trial-level attorney care to preserve this issue?
Decided June 28, 2018
People v. Mark Nonni; People v. Lawrence Parker

Issue before the Court: Does an O’Rama violation still result in a mode of proceedings error that does not require preservation, consistent with the longstanding precedent of the Court of Appeals?   

Held: Yes.  O’Rama lives. 

In People v. O’Rama, 78 N.Y.2d 270 (1991) and its progeny, the Court of Appeals has repeatedly held that the court’s failure to provide notice of the specific contents of a jury note requires reversal regardless of preservation. In this case (CAL represented one of the co-defendants), the prosecutor asked the Court of Appeals to overrule this longstanding precedent.

The Court didn’t buy it. In a decision written by Judge Rivera (joined by Judges Fahey, Stein, and Wilson), the Court re-affirmed that while some jury-note errors (e.g., the failure to respond to a note), require preservation, the failure to provide notice of the actual specific contents of a jury note does not. Six judges ultimately agreed with this determination (Judge Garcia was the only Judge who would have overruled O’Rama).

The Court also reaffirmed its holding in People v Silva (2014) and People v. Walston (2014) that appellate courts cannot speculate that counsel may have received notice of the note’s contents “off the record,” thus warranting a “reconstruction hearing.” Instead, the majority confirmed that if the record does not establish that counsel had notice of the note’s contents, the remedy is reversal.

Three judges dissented (the Chief Judge, Judge Feinman, and Judge Garcia) from this reconstruction-hearing holding, arguing that when the record leaves open the possibility that counsel received notice off the record, a reconstruction hearing is permissible. 

CAL Observes: Judge Garcia’s separate dissent, for the reasons stated in his dissent in People v. Morrison (another O’Rama case, argued and decided the same day as Nonni/Parker), bears mention.  Judge Garcia argued that that preservation is required when counsel knows a note “exists.” In doing so, Judge Garcia imagined a mischievous—and fictional—defense lawyer who intentionally declines to learn a note’s contents in order to pocket an appellate claim. While some appellate judges apparently believe that these phantom lawyers exist, lawyers in the trenches tend to chuckle at such suggestions.

Judge Garcia also supported a reconstruction hearing, noting that “in People v. Cruz [2010], we heard an appeal on an O’Rama issue after a reconstruction hearing had been held—a procedure that the presiding Chief Judge [Lippman] characterized as a ‘very useful exercise.’” Chief Judge Lippman’s sarcasm was clearly lost on Judge Garcia:

At the subsequently held ‘reconstruction hearing’ (really just a conversation between the court and counsel with some testimony from the court reporter), no one had any independent recollection of the events at issue, which had transpired some four years before. The court was of the view that the trial had been accurately recorded and, although he had no memory at all of the events in question, he thought it probable that he never received the jury note. . . . The record of this very useful exercise in hand, the Appellate Division resumed its consideration of defendant’s appeal. People v. Cruz (Lippman, C.J., concurring).

Fortunately though, the Chief’s wise warning wasn’t ignored by Judge Rivera, whose majority opinion clearly lays to rest any theory that reconstruction hearings are available in the O’Rama context. In closing the reconstruction hearing door once and for all, the Court of Appeals has enforced the basic rule that is hammered into lawyers’ heads the day they first appear in court: make a record. 
Decided June 28, 2018
People v. William Morrison
Decided June 27, 2018
People v. Steven Meyers
Issue before the Court: Whether either the State Constitution, or CPL 195.20, requires a waiver of indictment, in addition to being signed by the defendant in open court in the presence of counsel, to be the subject of a judicial on-the-record inquiry of the defendant (as set forth in the model colloquy in the CJI).
Held: No.  While the judge having an oral colloquy with the defendant per the CJI model colloquy is the “better practice,” it is not absolutely required.  Indeed, under the State Constitution and the CPL, the judge does not even have to approve the waiver, nor would she have the power to disapprove one that meets the statutory requirements. There was a two judge dissent, written by Judge Rivera and joined by Judge Feinman.
CAL Observes: Judge Rivera expresses disappointment that the majority is not using the classic “knowing and voluntary” test for the waiver of important rights, which test always requires a judicial on-the-record inquiry But Judge Wilson, writing for the majority, says that the waiver of the grand jury indictment has “unique” requirements, so the classic “knowing and voluntary” test is not apt.  Judge Feinman joining the dissent is interesting.  Hmmm...
Decided June 26, 2018
People v. William Harris
Issue before the Court: Whether, under Herring v. New York, 422 U.S. 853 (1975), a criminal defendant has an absolute right to deliver a summation in a bench trial, notwithstanding CPL 350.10, which allows the trial judge in a bench trial in a local criminal court to “waive” summations.
Held: No holding on this.  The Court reversed the conviction because the defendant, on trial for a B misdemeanor, ended up with 90 days in jail, thus triggering the Sixth Amendment right to counsel.  The Court described Herring as (so far) applicable only to trials on indictments, even though the Herring ruling was not so limited.  And in a footnote the Court expressly left open the “unpreserved” questions whether CPL 350.10 violates Herring where the defendant eventually received no jail time, or whether the court’s action violated CPL 170.10, which provides for the right to counsel in the local criminal court.
CAL Observes: Presumably, faced with the question whether to allow summations, a trial judge in a bench trial needs to parse out in advance whether, in the event there is a conviction, the judge intends to impose a jail sentence.  If no, the judge can waive summations; if yes, then summations must be allowed.  (Actually, we thought the trier of fact is not supposed to think about the sentence while guilt has yet to be determined.)  Since the defendant was on trial for a misdemeanor, clearly he had the right to counsel at trial, regardless of what the sentence would end up being.  The Court’s decision is nonsensical, even if the result –a reversal–was correct here.  Can some trial attorney please preserve the issue as a constitutional question?  Please?
June, 14, 2018
People v. Princesam Bailey
Issue before the Court: Whether the trial court erred in not conducting a Buford inquiry of a juror who interrupted defense counsel’s cross, told him that he was acting in an unacceptable manner, and threatened to leave the courtroom if he did not stop?
Held: We don’t know, since the Court did not reach the issue because of a purported lack of preservation.
CAL Observes: This decision was not about Buford, but about preservation.   On one side are the stringent-appliers of the preservation rule (in criminal cases, anyway).  These judges are in the majority on the current Court,  and were in the majority here –  in a decision penned by Judge Rivera.  On the other side are the common-sense-appliers of the rule.  The chief proponent of the latter is Judge Wilson (taking over this role from former Judge Robert Smith).  He was joined in dissent by Judge Fahey – a vote coming seemingly out of left field.  In response to the juror’s actions, the lawyer told the judge: “And I think based on her outburst, she not only put herself in the position where she should be removed, but I think she has poisoned the jury as well.”  The lawyer said in the next sentence that the juror was “grossly unqualified.”  Per the majority opinion, all the lawyer did was ask for a mistrial – which he was not entitled to, not a Buford inquiry and not the striking of the juror. Judge Wilson, quoting the above language, thought that the lawyer additionally preserved the issues of (a) whether the juror should be struck (a proposition that even the trial assistant agreed with) and (b) logically, whether an inquiry should have been made of the juror.  Two big take-aways for trial lawyers: (1) “Whining” does not equal preservation, so if you want the judge to do something, ask her directly to do it. (2) Objections by the co-defendants’ attorneys – who did ask for these things but were not the appellants here – do not preserve an issue for the defense counsel who does not “join” her colleagues.  One lawyer’s objection does not, by itself, preserve an issue for co-counsel.  And we mean never.
Decided June 14, 2018
People v. Natascha Tiger
Issue: Is a claim of actual innocence cognizable under C.P.L. §440.10 following the entry of a guilty plea.
Factual Background: Ms. Tiger, a nurse, worked for the complainant, a severely disabled girl.  While in Ms. Tiger’s care, the complainant suffered severe burns following a bath.  Initially doctors diagnosed the complainant as suffering an extreme allergic reaction to an antibiotic creme; a few days later, a different doctor diagnosed the injuries as being consistent with scalding.  During the investigation, Ms. Tiger had stated that she believed she had burned the child because the bath water was too hot.  Charges of second-degree assault and endangering the welfare of a vulnerable person followed.   Following plea negotiations, Ms. Tiger pleaded guilty to the lesser charge of endangering the welfare of a disabled person in exchange for a split sentence of five years probation concurrent with four months in prison.  During the plea colloquy Ms. Tiger initially stated that she had tested the bath water and it did not feel “that hot.”  Following further inquiry, she admitted making a mistake in determining the water’s temperature and that she was reckless in the care provided.  There was no motion to withdraw the plea or appeal.  
The complainant’s family brought a civil lawsuit and a jury concluded that the care provided by Ms. Tiger did not cause the complainant’s injuries.  Ms. Tiger subsequently brought a C.P.L. §440.10 motion to vacate her guilty plea alleging ineffective assistance of counsel and actual innocence.  She relied upon medical records which existed at the time of the plea suggesting the injuries were caused by an allergic reaction, her own affirmation asserting her innocence and that of a medical expert retained during the civil suit.  In addition to asserting her innocence in contradiction of her plea statements, Ms. Tiger set forth that counsel had failed to retain a medical expert because of a lack of funds.
In opposing the motion, the prosecution argued that C.P.L.§440.10(1)(h) did not recognize an actual innocence claim in the context of guilty pleas.  The motion court summarily denied the motion and the Second Department reversed.  Relying on People v. Hamilton, 115 A.D.3d 12 (2d Dept. 2014), the Appellate Division held that Ms. Tiger’s guilty plea did not bar her from seeking such relief.  Judge Garcia granted leave to the prosecution to resolve the question of whether a guilty plea forecloses an actual innocence claim under C.P.L. §440.10.
Held: A claim of actual innocence is not cognizable under C.P.L. §440.10 following a guilty plea.  DeFiore, writing for the majority, relied on the recent 2012 enactment of C.P.L. §440.10(1)(g-1) establishing a claim of actual innocence in cases involving newly discovered DNA evidence where a defendant has pleaded guilty but can demonstrate a “substantial probability” that she is actually innocence.  That the legislature had recently carved out this exception for DNA cases supported that an actual innocence claim did not exist in other plea contexts.  The majority emphasized the finality interests at stake and the importance that “a voluntary and solemn admission of guilt in a judicial proceeding is not cast aside in a collateral motion.”  The centrality of the plea process to the administration of justice was also emphasized.   The court expressly left open the question of whether a defendant convicted after trial can raise a claim of actual innocence.  
Garcia wrote a separate opinion, employing similar analysis,  to emphasize that Ms. Tiger’s “freestanding”  actual innocence claim was foreclosed regardless of whether she possessed other claims for relief under C.P.L. §440.10.
Judge Wilson, in an opinion joined by Rivera, opined that the majority had reached the issue of whether §440.10 recognizes an actual innocence claim following a guilty plea too soon, since all the Appellate Division’s decision did was grant a hearing into Ms. Tiger’s claims.  Wilson also disagreed that a person who pleaded guilty but is innocent cannot vacate a guilty plea pursuant to C.P.L. §440.10 (1)(h) in the absence of DNA evidence. Emphasizing the centrality of protecting the innocent to the integrity of our criminal justice system and the prevalence of guilty pleas, Wilson would not bar relief on the basis of a guilty plea. “It is not impossible, as the majority seems to imply, to redress exceptional cases in which a clearly innocent person has pleaded guilty, and simultaneously to avoid eroding the fundamentals of our criminal justice system,” Judge Wilson observed.
CAL Observes: A collective groan from the defense bar could be heard when the court decided this case.  The majority opinion, mean-spirited and exulting the interests of finality over justice, undercuts the criminal justice system’s central mission -- to protect the innocent while ensuring that only the guilty suffer the onus of criminal conviction.  
While the decision bodes poorly for the recognition of any “free standing” claim of actual innocence, including ones following a trial conviction, in reality the decision’s impact will be limited.  The vast majority of 440 motion do not involve claims of actual innocence, particularly in the context of guilty pleas.  As Ms. Tiger’s case itself illustrates, claims that an innocent person was wrongfully convicted, almost invariably result from some breakdown in the process, such as the ineffective assistance of counsel or the suppression of exculpatory evidence.  Still, the majority opinion is depressing for its willingness to categorically close the door to actual innocence claims following a guilty plea, something the State of Texas has refused to do.
Decided June 14, 2018
People v. Gary Thibodeau
Decided June 12, 2018
People v. Roque Silvagnoli
Issue: Was the defendant’s right to counsel violated where the detective investigating the defendant’s involvement in a homicide brought up the defendant’s pending drug case, on which he had counsel? 
Held: No.  The impermissible questioning was so “brief, flippant, and minimal,” that it was “discrete and fairly separable as a matter of law from the interrogation of defendant on an unrepresented matter.”  
CAL Observes: The brief memorandum opinion reversing the Appellate Division on the People's appeal (like Henry, decided the same day) provides no facts, but the Appellate Division decision does.  While Henry analyzed the question of “relatedness” between the represented and unrepresented matters, this case involved the second way that an interrogation on one matter may violate the right to counsel on the other: where, though the two matters are unrelated, the questioning on the represented matter is “designed to elicit statements on an unrelated matter” in which the suspect is not represented.  See People v. Cohen, 90 N.Y.2d 632 (1997). The Second Department, while acknowledging that the reference to the drug charges was “brief and flippant,” found that it was not “in context, innocuous or discrete and fairly separable from the homicide investigation.”  That court noted that the remarks regarding the pending drug case went to the defendant’s alleged participation in drug trade at the location of the homicide, and that such  activity provided a motivation for the homicide. The questioning on the drug case was “intertwined with questioning regarding the homicide,” the Second Department found, requiring suppression.  Plainly, the Court of Appeals was having none of this, and stopped the analysis short upon finding that the questioning itself was too brief to be of any real consequence in producing incriminating statements.  The Court did not address whether the questioning, even if that, was nonetheless designed to elicit statements. We suspect that “brief and flippant” will find its way into future opinions declining to find counsel violations. 
Decided June 12, 2018
People v. Bryan Henry
Issue Before the Court: Was interrogation of the defendant on the murder charge, for which he was not represented by counsel, prohibited owing to the entry of counsel on the marijuana charge on which he was earlier arrested and arraigned. 
Factual Background: The defendant was arrested in a black Sonata with tinted windows for possession of marijuana.  He was assigned an attorney and released on bail.  The police then determined that the BlackBerry phone recovered from the floor of the car was the phone  stolen in an earlier robbery of a tattoo parlor perpetrated by two masked men driving a black Sonata with tinted windows.  Further, a homicide had taken place around that same time, where the masked shooter reportedly arrived and left in a black Sonata with tinted windows. Defendant was arrested for possessing the stolen phone and, after waiving Miranda rights, questioned about the robbery and murder.  He made statements admitting he was the driver and identified the passengers.  He was indicted on charges of murder, robbery, CPW, CPSP, and possession of marijuana. 
Supreme Court suppressed his statements about the robbery, arguing they had been obtained in violation of his right to counsel, which had attached as to the marijuana charge, as the robbery and marijuana charges were “related” through the phone’s recovery during the marijuana arrest. Supreme Court did not suppress the statements regarding the murder.  After his conviction for murder and other counts, the Appellate Division held that defendant’s statements regarding the murder charge should also have been suppressed. The People appealed. 
Held:   On this People’s appeal, the Court of Appeals reversed the Appellate Division, finding that its “relatedness” analysis, which guided the outcome, was wrong, both procedurally and substantively.  After first briefly reviewing the law governing whether and when a suspect who is represented on one crime can be questioned about a different crime, the Court concluded that the Appellate Division had failed to consider whether the murder charge was sufficiently related to the marijuana charge, and there was no evidence that it was.  The mere fact that a black Sonata was used in the commission of the murder and was the car defendant was driving when the police found the marijuana, did not “make the murder and marijuana charges ‘so closely related transactionally, or in space or time, that questioning on the [murder charge] would all but inevitably elicit incriminating responses regarding the [marijuana charge] in which there had been an entry of counsel.’”
The Court also criticized the Appellate Division’s procedural findings, in a rather complicated and confusing discussion of CPL 470.15. 
CAL Observes: This case is a reminder of the complexity of the law around a suspect’s right to counsel during interrogations.  A common scenario, illustrated in Henry, concerns police interrogations of a defendant suspected of committing a very serious crime, who has counsel on a much less serious crime.  Does the defendant’s representation of counsel on the minor crime prohibit the police from questioning the defendant on the serious crime?  Maybe, maybe not, and not here.  The answer depends on a number of things, but chief among them is whether the two crimes can be considered “related.”  A conservative court will obviously be less likely to find “relatedness,” though since Judge Wilson authored this unanimous opinion, it seems unlikely that the issue was a close one here.  
Of particular interest is footnote 1, where Judge Wilson wrote that “a different rule applies” when the defendant “is in custody on a charge upon which the right to counsel has attached.”  Then, the police “are prohibited from questioning the defendant on any matters, related or unrelated.” (citing People v. Burdo and People v. Rogers).  As framed, Judge Wilson’s statement of the rule seems favorably broad, as not all “counsel attachments” have been considered equal under the law.  Prior Court of Appeals caselaw has drawn a distinction between the actual “entry” of counsel, and the attachment of counsel that occurs by operation of law, as when an accusatory instrument is filed upon issuance of an arrest warrant.  The footnote in Henry — whether intentionally or inadvertently —  appears to blur that distinction, opening the door to broader right-to-counsel challenges when a defendant inculpates himself in a serious crime after being taken into custody on an arrest warrant for a minor infraction. 
Decided June 7, 2018
People v Rafael Sanabria
Decided June 7, 2018
People v. Steven Berrezueta
Issue before the Court: Whether the knife in question was a “switchblade” knife within the statutory definition, so as to be a per se weapon, i.e. one of strict liability.
Held: Yes, but the majority opinion only says that it does, without explaining why. 
CAL Observes: There was a long solo dissent by Judge Rivera, unusual for an SSM – in normal times.  She points out that the statute defines switchblades as having a button “in the handle of” the knife which, when pushed, springs the blade out.  The knife in question had a button “in the blade”, that is, it was not on the handle.  The majority opinion dances around this distinction.  Judge Rivera’s point was that, if the State is convicting someone of possessing a per se weapon with no mens rea, attention must be paid to the statutory definition, which this knife doesn’t meet.  In this case, there was no question that the defendant used the knife only in the mailroom for his job.  Another victim of DA Vance’s war on poor schlubs who buy these knives legally and have no way to know that they are criminals.  Judge Rivera is right.  Shame on the judges in the majority, hiding behind this “mem.”
Decided June 7, 2018
People v. William Rodriguez
Decided May 8, 2018
People v. Twanek Cummings
Issues Presented:
1) Whether the law-of-the-case doctrine precludes a substitute justice in a re-trial from overturning an evidentiary ruling of two prior judges, in the first trial and the re-trial.
2) Whether the evidence was sufficient to infer a pre-requisite to admission of an excited utterance statement, that the statement be based upon the personal observation of the declarant.  
(1) Law of the case does not preclude a third trial judge from overturning an evidentiary ruling by two prior judges in that same case, absent a showing of prejudice resulting from that reversal; and
(2) A statement by an unidentified person is inadmissible as an excited utterance where there is  no evidence from which a trier of fact can reasonably infer that the statement was based upon the personal observation of the declarant.
CAL Observes: This decision reversed an AD1 order (thanks to our own Susan Salomon!) affirming the trial court’s admission of a statement heard in the background of a 911 call by an unidentified person, under the excited utterance exception to the hearsay rule. During a 911 call made within five minutes of the shooting, someone in the background yelled out that “it was Twanek...” The defendant’s fingerprint was later found on the door of a vehicle from which the gunman had slipped away. No weapon was ever recovered, and the defendant was not identified in a lineup. At a first trial, the 911 call was excluded as inadmissible hearsay, and the jury deadlocked. At the re-trial, a new judge also disallowed the statement but she took ill, and a third judge then admitted the statement at the re-trial as an excited utterance. The defendant was then convicted.
(1) On the law of the case issue, the Court refused to apply a per se rule as to a substitute judge’s reconsideration of a prior judge’s evidentiary ruling. It held that whether to admit hearsay as an excited utterance is an evidentiary decision “left to the sound discretion of the trial court,”and since such decisions may be reconsidered on retrial, there is “no reason” to apply a different rule to a substitute judge within the same re-trial. The Court found it “notable” that the defendant did not claim reliance on or undue prejudice from the reversal of the ruling  – leaving the door open that a showing of prejudice could be a basis for finding an abuse of discretion in future cases. Absent prejudice however, it looks like prior evidentiary rulings can be raised, at the least, again and again.
(2) On a happy note, the excited utterance ruling clarifies a requirement of that rule that can be helpful to our clients.
Both parties here agreed that the question of whether a declarant personally observed an event is normally a mixed question of law and fact not reviewable by the COA. The Court’s inquiry was therefore limited to whether there was support in the record for the trial court’s ruling here, and the Court found there was none. 
The Court ruled that while the declarant can be an unidentified bystander, facts still must exist to establish personal observation. Here the declarant’s “bare conclusory statement” ... “contained no basis from which personal knowledge can reasonably be inferred.”  Evidence that corroborated the defendant’s presence at the scene was rejected as irrelevant to whether there was personal observation by the declarant. The Court found no evidence as to whether the declarant saw anything, or whether he was just “parroting” what he had been told by others.
The Court found the error was not harmless, rejecting the defense due process claim but finding as a non-constitutional matter that the evidence was not overwhelming, and the 911 call made a difference. It also noted the prosecutor’s “heavy reliance” on the 911 call in summation. 
Finally, in her concurrence, Judge Rivera questions the justification for the excited utterance exception to the hearsay rule at all, given the advances in psychology and neuroscience that demonstrate its weak foundation; that is, people’s “inability to accurately recall facts when experiencing trauma, and, in turn, to create falsehoods immediately.” After citing sources supporting her conclusions, Rivera notes that since the premise for the excited utterance exception was not challenged in this case, that challenge will have to wait for another day.
Decided May 8, 2018
People v. Akeem Wallace
Issue Before the Court: Whether the “outside of home or place of business” exception to Penal Law § 265.03(3), which proscribes possession of a firearm, applies to a “newer manager who ha[d] not been trained as an assistant manager” at a McDonald’s. 
Held: Nope. The court chooses to construe the exception “narrowly.”
CAL Observes: The rule the Court devises in this case, with no source in the text of Penal Law § 265.03(3), essentially creates a class-based distinction: if you are someone with property rights or in upper management—a “merchant, storekeeper, or principal operator” of an establishment—you are protected from felony prosecution; if you are a middle manager or employee (however those terms are defined), you are not. 
After acknowledging that “place of business” is not defined by the Penal Law, the Court looks to the history of this provision and of Penal Law § 400.00, which governs the licensing of guns and defines “place of business” as applying only to merchants and storekeepers. It then chooses to construe Penal Law § 265.03 together with Penal Law § 400.00, despite 265.03’s omission of the “merchant or storekeeper” language. Narrow construction to effectuate the Legislature’s interest in gun control is one thing, but the Court is making a somewhat arbitrary choice that disproportionately affects those who are without proprietary interest in the business or part of high-level management, who cannot avail themselves of this exception. As Judge Stein points out in her concurrance, the reasoning is a bit disingenuous, as who qualifies as a “merchant, storekeeper, or principal operator” is left unclear by the decision, which without basis “excludes individuals who control the day-to-day operations of a business, but lack a proprietary or possessory ownership.”
Decided May 8, 2018
People v. Matthew Kuzdzal
Decided May 3, 2018
People v. Sergey Aleynikov
Decided May 3, 2018
People v. Donald Odum
Decided May 3, 2018
People v. Kerri Roberts; People v. Terri Rush
Issue before the Court: Whether the language in the identity-theft statute, “assumes the identity of another person” is a discrete element that must be separately proved from, inter alia, “using personal identifying information of that other person.”
Held: The requirement under the identity-theft statute that a defendant assumes the identity of another is not a separate element of the crime
CAL Observes: Defendant Roberts attempted to use someone else’s credit card number, stolen from that other person, which Roberts had attached to a card with the name of a fictional person, to make a single purchase of sneakers in a sporting goods store. Under the 2002 identity-theft statute, a person is guilty of first- and second-degree identity theft “when [such person] knowingly and with intent to defraud assumes the identity of another person by presenting [themselves] as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby ... commits or attempts to commit [a felony]” (Penal Law §§ 190.79[3]; 190.80[3], italics added ). The majority held that the italicized statutory language was not an element, but merely a summary or introduction to the three types of acts that violate the statute.
While the majority’s concern with identity theft is a valid one, rewriting criminal statutes by omitting statutory language included by the legislature is not the answer. As Judge Wilson points out in his dissent, the results of such judicial editing can be unpredictable and unwarranted. Judge Wilson points out the failings of the majority’s analysis, by among other things, offering a series of hypothetical examples of essentially innocent conduct that would satisfy the majority’s definition of identity theft. Similarly, suggesting that criminal statutes can be rewritten by treating statutory language as non-essential may have unexpected and negative results. 
Decided May 1, 2018
People v. Daria N. Epakchi
Decided May 1, 2018
People v. Ricky D. Gates
Decided April 26, 2018
People v. Quinn Britton
Issue before the Court: Whether the judge, at a sex offender registration hearing [SORA] following defendant’s conviction of misdemeanor sexual abuse, erred in finding that the defendant engaged in sexual intercourse or “deviate sexual intercourse” despite the defendant’s trial acquittal of charges relating to this more serious alleged conduct.
Held: No. “His acquittal of such charges at his criminal trial does not foreclose the hearing court from finding, by clear and convincing evidence, that he engaged in such acts.” Additionally, the Court of Appeals held that the record, in this case, supported “the affirmed finding that defendant engaged in sexual intercourse, deviate sexual intercourse or aggravated sexual abuse.”
CAL Observes:
Note: This is a brief memorandum decision made on summary review. The Court cited to a prior case holding that an acquittal of criminal charges is not the equivalent of a finding of innocence, Reed v. State of New York, 78 N.Y. 2d 1 (1991), and acknowledged the different burdens of proof at trial and at the SORA hearing.  People v.  Headley, 147 A.D.3d 988 (2nd Dept. 2017).  The Court, however, did not discuss the evidence in this case or explain how the prosecution had met its burden of proof at the SORA hearing.
In her detailed dissent, Judge Rivera agreed that “there may be cases in which there is clear and convincing evidence of the defendant’s sexual acts notwithstanding acquittal of the underlying charges,” 31 N.Y.3d at 1026, but believed that “this is not such a case.” Id. Stressing “the exacting nature” of the clear and convincing evidence standard, the judge went on to analyze the weaknesses in the prosecution’s case to support her dissenting vote.
Judge Rivera did not convince her colleagues in this case that the evidence was flawed. After all, her dissent reveals that the prosecution did not rest solely on the child complainant’s credibility. There was also evidence of prompt outcry to a brother and, even more significantly, the defendant admitted to the police that he had “perform[ed] oral sex” on the complainant. Moreover, the same judge heard the evidence at trial and sat at the SORA hearing. Similarly, in Headley, on which the majority relied, the defendant had admitted guilt to the Probation Department despite the jury’s partial acquittal.
On a different record, however, the defendant might prevail. Advocates at SORA hearing should continue to review the trial record carefully for signs of weakness that prevent the prosecution from meeting the clear-and-convincing standard.  The jury’s acquittal is particularly persuasive when the SORA judge did not preside at trial and, therefore, has no independent impression of the evidence.
Decided April 3, 2018
People v. Spence Silburn
Issue before the Court: Whether the court denied appellant his right to represent himself by denying his request to proceed “pro se with standby counsel”; and whether appellant was required to provide pretrial notice to the prosecution of his intent to introduce his bipolar disorder diagnosis in his challenge the voluntariness of his statements to police.
Held: The court did not improperly deny appellant’s request to proceed pro se because that request was conditioned on proceeding with standby counsel; and defendant was required to give notice of his intent to introduce evidence of his psychiatric diagnosis.
CAL Observes: Resolution of the right-to-proceed pro se issue devolved to the question of whether appellant made an unequivocal request, when defendant also asked for the assistance of standby counsel. The majority ruled that, because appellant’s request to proceed pro se was followed shortly thereafter by a request for standby counsel, his request to proceed pro se was not unequivocal. Because the request was not unequivocal, the majority ruled, the trial court was justified in ignoring it without further inquiry, as a defendant in New York has no right to standby counsel. 
In his dissent, Judge Wilson highlights the unfairness of the majority’s ruling with a hypothetical taking place in a fast food restaurant, suggesting that a customer that orders a hamburger, and then later adds fries to his order, has placed an unequivocal request for a hamburger, regardless of whether fries are on the menu or otherwise unavailable (Judge Wilson returns to his hypothetical in his dissent in People v. Bailey, 31 N.Y.3d 144 (2018), using it to explore the unfairness of the majority’s application of the preservation rule there). At a minimum, any ambiguity in the order warrants a follow-up question of whether the customer still wanted the hamburger. In the right-to-proceed pro se context, Judge Wilson observed, “although a ‘lack of knowledge of legal principles’ and ‘unfamiliarity with courtroom procedures’ cannot bar defendants from exercising their right to self-representation, the majority’s decision uses those exact shortcomings to prevent [defendant] from requesting to exercise his right.” 
Judge Wilson’s conclusions about the unfairness of the majority’s application of preservation rules appear entirely correct. But one is left to wonder whether exploration of the precision required to preserve an issue by the majority of the current Court in a dissent, furthers the cause, or merely gives appellate prosecutors more precedent to rely upon.
Judge Rivera dissented separately to address the importance of standby counsel for vindicating a defendant’s right to proceed pro se, suggesting that the trial judge’s policy of denying all requests for standby counsel is a policy that should no longer be countenanced. 
Decided March 29, 2018
People v. Teri W.
Decided March 27, 2018
People v. Mark Boyd
Decided March 27, 2018
People v. Rafael Perez
Decided March 22, 2018
People v. Michael Johnson
Decided March 22, 2018
People v. Nicholas Brooks
Decided March 22, 2018
People v. Aladdin Sanchez
Decided February 15, 2018
People v. Reginald Wiggins
Issue Before the Court: “[H]ow long is too long” for a defendant to wait for trial?
Held: The Court considered Mr. Wiggins’s constitutional speedy trial claim, finding that the prosecution may not seek to delay a trial indefinitely so that they might pursue evidence that could strengthen their case, even assuming a good-faith belief that the evidence would be useful. In this case, over six years at Rikers was too long.
CAL Observes: The Court was undoubtedly motivated by how extreme the delay was here, not to mention a number of fairly unique factors, such as Mr. Wiggins’s age (16 at the time of the incident and arrest); and the two-and-one-half years the prosecution spent trying to get a co-defendant to cooperate against him in this homicide case, which included the declaration of three mistrials in the co-defendant’s case. It also could not likely have been oblivious to the context in which the case was occurring—one of much-criticized delays in the New York City courthouses, the conditions at Rikers Island, especially for young people, and a growing chorus of voices for bail reform to avoid precisely the sort of prejudice and delays that occurred here—as the amici here pointed out.
Nonetheless, the case is in many ways a straightforward application of the Taranovich factors, balancing the various considerations to arrive at its conclusion (though the dissent would reach a different outcome, notwithstanding its acknowledgment that the delay was extraordinary and Mr. Wiggins’s incarceration at age 16 resulted in serious prejudice, as it would weigh the gravity of the offense heavily and believed there was a disputed question as to whether the defense “acquiesce[d] in the delay”). That said, a few things are of note. First, the Court finds that the People did not establish that Mr. Wiggins would be held on unrelated charges alone—arising out of a “jailhouse altercation”—if he were not facing the instant charges. Second, the Court reaffirms long-standing state and federal law that defendants need not show specific prejudice as opposed to just the inherent generalized prejudice that inheres when someone is incarcerated and there is a long delay.
Also of note to Court of Appeals practice is that the Court disregarded the People’s calls for it to treat the reason-for-delay question as a mixed one of law and fact. Instead, it determined that this was a question of whether their proffered reason was a sufficient one as a matter of law.
February 15, 2018
People v. Casimiro Reyes
Decided February 13, 2018
People v. Jude Francis
Issue before the Court: Whether a defendant’s prior youthful offender [“YO”]  adjudication may be considered in determining his or her risk-level designation under the Sex Offender Registration Act [“SORA”].
Held: Yes. The Court held that the Criminal Procedure Law specifically provides that [Department of Corrections and Community Supervision] employees, “of which the Board [of Examiners of Sex Offenders] is composed,” may have access to YO records. 30 N.Y.3d 737, 742 (2018). Moreover, while a YO adjudication is not a “conviction,” it is an “offense,” and the Legislature also directed that the Board “take into consideration a sex offender’s criminal history factors when assessing risk level, including ‘the number, date and nature of prior offenses.’” 30 N.Y.3d at 746, quoting Correction Law § 168-l.
CAL Observes: To be clear, New York State, unlike other jurisdictions, does not require Youthful Offenders to register as sex offenders. This case involves someone who committed the sex offense as an adult [though only age 19] but he had a prior Youthful Offender adjudication for possession of stolen property. For that prior felony conviction, he was scored 25 points under factors 9 and 10 of the Board’s risk assessment instrument - which made the difference between a high and medium risk level.
Despite affirming, the Court did acknowledge both prior case law and “copious scientific data supporting the argument that young people who commit crimes are unlikely to reoffend.” 30 N.Y.3d at 750.  However, with regard to the defendant’s argument that “science in fact disproves the Board’s conclusion that youthful acts are indicative of a risk to reoffense, and, as a matter of law, the [Board’s] Guidelines violate SORA,” the Court held that the defendant “failed to develop a record reviewable by the SORA court with an opportunity for the Board to respond. Thus, that claim is not properly before us.”  The Court appears to have left a door open.
A similar claim regarding a youth’s risk of reoffense may be resolved next term in People v. DelaCruz, 161 A.D.3d 519 (1st Dept. 2018), where the First Department rejected the defendant’s  argument that due process bars requiring a 16-year-old convicted as an adult to register for life (with a Level 3 high risk SORA adjudication). The Court stated: “Although defendant and amici raise substantial arguments, they have not established that any aspect of either the applicable statute or the risk assessment instrument is unconstitutional.”  The defendant has appealed “as of right” to the Court of Appeals, under CPLR § 5601.
Decided February 13, 2018
People v. Douglas McCain; People v. Albert Edward
Decided February 8, 2018
People v. Dennis O'Kane
Decided February 8, 2018
People v. Joseph Sposito
Decided December 19, 2017
People v. Dwight Smith
Decided December 14, 2017
People v. Otis Boone
Issue Presented: Whether a defendant in an identification case, where the defendant and identifying witness appear to be of different races, is entitled to a charge on the potential cross-racial effect on that identification.
Holding: Yes, when requested, unless the trial court determines that the identification of the perpetrator is not in dispute. When applicable, the court is required to charge: (1) that the jury should consider whether there is a difference in race between the defendant and the identifying witness; and (2) if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race then their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.
CAL Observes: This was a 5-judge majority opinion written by Judge Fahey, with a concurrence by Judge Garcia joined by Judge Stein, with Judge Wilson not participating.
In these two consolidated single eyewitness cases where there was a white victim and a black perpetrator, the Court of Appeals rejected the reasoning of the court below that the defense must call an expert witness or cross-examine the eyewitness about the cross-racial effect in order to get a charge on this factor. Recognizing that mistaken identification is the single greatest cause of wrongful convictions in this country, the Court cited to recent scientific studies (and case law) on the effect of cross-racial identification in particular in increasing the unreliability of identifications, despite juror belief otherwise, and despite the certainty of the witness’s identification. 
Because of these recent research developments, the Court distinguished this factor from the general expanded identification charge at issue in People v. Whalen, 59 N.Y.2d 273 (1983). In Whalen,  the Court held such an expanded charge, while recommended, was discretionary. The concurrence objected that, as with Whalen, whether to charge the cross-racial effect should also be a matter of discretion for the trial court. But the majority disagreed, and a cross-racial charge is now required when requested except where a trial court finds, as a matter of law, that identification is not at issue. 
Boone may hopefully signal a shift in the Court’s willingness to look at other identification factors that have been recognized within the scientific community, such as the lack of correlation between a witness’ confidence and the accuracy of his or her identification, and the potential effect of post-event information on eyewitness testimony, as discuss ed in People v. LeGrand, 8 N.Y.3d 449 (2007). 
Decided November 21, 2017
People v. Leroy Savage Smith
Issue Presented: Whether a trial court may summarily deny a request for new counsel on the eve of trial, or must make a minimal inquiry under People v. Sides (75 NY2d 822), where defendant alleges ineffective assistance of counsel as the basis for the substitution. Although its opinion did not include the defendant’s specific allegations, defendant said his Onondaga County 18-B attorney failed to contact any of the exculpatory witnesses he named or do any investigation into the assault where he claimed self-defense.  Defendant also said that his attorney told him that there was no money to hire and investigator to do so, thus implicating Hinton v Alabama (571 US __; 134 S Ct 1081 [2014]).  Despite such allegations, the Fourth Department, citing People v Porto (16 NY3d 93) found that Mr. Smith “failed to proffer specific allegations of a seemingly serious request that would require the court to engage in a minimal inquiry.”
Held: The Court simply “agree[d] with the defendant that the trial court failed to adequately inquire into his “seemingly serious request[]” to substitute counsel.” Without mentioning any of the facts, if thus held that the trial court abused its discretion in conducting no inquiry.
CAL Observes: Neither the Fourth Department nor the Court of Appeals mentioned any of the defendant’s specific allegations in coming to opposite conclusions, thus providing future litigants with no insight as to what specific complaints a defendant might make to trigger the need for an inquiry. Both courts did this on purpose (see the Webcast or Transcript of the October 12, 2017, oral argument on the Court’s website). The idea that trial courts in Onondaga County will not appoint experts for indigent defendants – the claim that got the top court’s attention – was too explosive to put on paper. (until now.)
Decided November 21, 2017
People v. Joseph W. Kislowski
Issue Presented:  Kislowski was determined by the lower court to have violated the terms of his probation which specified that he was not to associate with convicted criminals.  The specification cited to four dates on which he had contact with "Angela Nichols" --a former girlfriend with whom he shared a dog.  The contact related to four times he had arranged to walk the dog.  Nichols had a DWI misdemeanor conviction.
The Third Department found that the specifications satisfied the provisions of C.P.L. section 410.70(2) which requires that a statement be filed with the clerk of the court setting forth the condition violated and a reasonable description of the time, place and manner in which the violation occurred.  The purpose of this provision is to provide the defendant with a full opportunity to prepare a defense.  During his arraignment on the charges, Kislowski asked the court "you're talking about the person who owns the dog, a former girlfriend?"  A majority of the Appellate Division believed this question demonstrated adequate knowledge of the charges to mount a defense.
The dissent disagreed, finding the specifications facially inadequate and not cured by the questions posed at arraignment because the lower court never clarified the nature of the charges sufficiently to satisfy the statutory mandate.
Held:  The Court of Appeals adopted the reasoning of the dissent, holding that the VOP petition which alleged four dates of contact with a named person did not comport with the statutory requirements of providing the time, place and manner of the violation and was not cured by Kislowski's questions to the court posed during the arraignment.
CAL Observes:  Undoubtedly the sympathetic facts here impacted the outcome.  A rare win for the defense in this context alleging lack of adequate notice to have a full opportunity to mount a defense.  While decided in the VOP context, the reasoning here is potentially helpful for other facial ufficiency challenges and should be kept in mind for our Appellate Term practice
Decided November 21, 2017
People v. Phillip A. Dodson
Issue Presented: Whether a court must assign new counsel to a defendant that asks for on after a guilty plea, but before sentencing, and wants advice about whether he should move to withdraw his plea.
Held: Where a defendant asks for new counsel following a guilty plea to assess whether he should move to withdraw his plea, and supports that request with “specific allegations regarding counsel’s performance,” the court must grant that request. 
CAL Observes: This brief memorandum decision is more important than it looks, for two reasons. First, the Court for the first time endorses a defendant’s right to a new attorney to assess whether to move to withdraw a guilty plea. Seasoned appellate practitioners know that a pre-sentencing request for new counsel, where a defendant has a change of heart about his decision to plead guilty, is not uncommon. This decision recognizes defendant’s right to a new attorney to assess whether he has grounds for plea withdrawal. 
Second, while the Court of Appeals did not specify what “specific allegations” Dodson made about counsel’s performance that triggered his right to a new attorney, the parties briefs reveal that Dodson did not say much. At sentencing, per the District Attorney’s brief, Dodson told the court that he needed a new lawyer because his attorney did not want to represent him, he wanted an attorney who would tell him his chances on not such a “negative level,” and wanted a lawyer who was “more of a straight shooter.” These allegations, the Court found, were specific enough to warrant the substitution of counsel.
Decided November 20, 2017
People v. Marlo S. Helms
Issue Presented: Validity of an out-of-state conviction – a Georgia burglary – for predicate sentencing purposes.
Held: Valid, even under New York’s “strict equivalency test.”  Although the Georgia statute did not on its face require that the person “knowingly” enter or remain in the dwelling, other incorporated statutes and case law from Georgia established that “knowingly” was an element of the offense.  The court reaffirmed its earlier holdings that reference to out-of-state statutes and case law is permissible in determining the scope of the foreign statute.
CAL Observes: This represents one of the only times that the Court of Appeals has upheld the use of an out-of-state conviction.  Despite that, litigants should be wary of the use of any out-of-state predicate as few can pass the “strict equivalency test.”  Even foreign burglary statutes will remain subject to challenge as states other than Georgia do not require that the entry be done “knowingly” and, perhaps more significantly, define “building,” “dwelling,” and “offense” more broadly than New York.  As long as there is a theoretical way to violate the foreign statute that would not be a felony (or violent felony) under New York law, then predicate sentencing should not be permitted.
Notably, this case reaffirmed People v. Jurgins, 26 N.Y.3d 607 (2015), a leading case on consideration of out-of-state predicates, but did not address the key open issue in Jurgins regarding the distinction between “criminal acts required by a penal statute” and “the various ways in which the statutory crime may be committed.”  Understanding that distinction will be critical in determining the validity of many out-of-state convictions.
Decided November 20, 2017
People v. Mario Arjune
Issue Presented: Whether a writ of error coram nobis, alleging ineffective assistance of counsel depriving a defendant of his right to appeal, lies against trial counsel for - - after filing a notice of appeal - - failing to advise his client about his right to appeal or explain how to get appellate counsel assigned, thus resulting in the eventual dismissal of the appeal for failure to prosecute.  (Here, retained counsel filed a notice of appeal on behalf of his intellectually disabled and now-indigent client, but did nothing more - he did not advise his client of his right to poor person relief or to counsel, nor explain how to go about obtaining either, and he did not advise him of the benefits of appealing and consequences of failing to do so.  When the People moved to dismiss for failure to perfect, counsel neglected to take any action although he had been served with their motion and thus must have known the appeal would likely be dismissed.) 
Held: By a 5 to 2 vote, there is no right to counsel under the 6th Amendment or the State Constitution, to assist an indigent defendant in preparing a poor person application to get counsel assigned to represent him on appeal. Once a notice of appeal is filed, retained or assigned trial counsel has no constitutional obligation to assist the defendant, and may constitutionally do nothing. In dissent, Judge Rivera pointed out, correctly, that the representation fell below what was required by Appellate Division rules in every department and relevant bar association standards. Counsel was thus ineffective, in the dissent’s view. Judge Wilson joined that opinion and also separately dissented on the ground that, in his view, counsel is required under current United States Supreme Court case law to assist the defendant in this regard.
CAL Observes: According to the dissents, the majority decision is poorly-reasoned, mean-spirited, and retrograde. We see no reason to disagree. Although a lawyer who abandons a client this way has committed malpractice, violated Appellate Division rules, and violated every relevant bar association standard – and may be subject to disciplinary action – he has not violated State or Federal right-to-counsel provisions, according to the majority. The defendant thus has no recourse on a writ of error coram nobis to revive his appeal. The tenor of this decision is consistent with the dismissive posture that the Court has historically taken with regard to the right to effective assistance of counsel on a criminal appeal.
Decided November 16, 2017
People v. Roberto Estremera
Issue Presented: Whether a defendant need be present at a “resentencing” which does not “adversely affect[]” him.
Held: Yes, of course he does.  A defendant “must be personally present at the time sentence is pronounced.”  C.P.L. § 380.40.
CAL Observes: The Court seemingly didn’t struggle with this one, though the context of the “resentencing” makes it an interesting case.  This is yet another case stemming from the post-release supervision (PRS) debacle, where for years trial courts failed to inform defendants of PRS at the time of the plea, see People v. Catu, 4 N.Y.3d 242 (2005), or to pronounce the term of PRS at the time of sentencing, see People v. Sparber, 10 N.Y.3d 457 (2008).  Here, at the Sparber “resentencing,” the court denied the defendant’s Catu motion to vacate the plea and, pursuant to Penal Law § 70.85, let stand the original sentence without PRS – “No resentence,” the court announced.  The Court found that so-termed “No resentence” to, in fact, be a “proceeding at which ‘sentence is pronounced,’” such that defendant had a right to be present, even though his sentence remained unchanged and even though he was, arguably, not adversely affected by that proceeding.
The ruling is interesting in light of the Court’s prior decisions, essentially crafting a PRS/ Sparber proceeding exception to many resentencing rules.  See, e.g., People v. Lingle, 16 N.Y.3d 621 (2011) (holding that a court may not reconsider the length of the incarceratory term of a sentence at a Sparber/ Penal Law § 70.85 proceeding); People v. Boyer, 22 N.Y.3d 15 (2013) (holding that the date of the original sentencing, not the date of the Sparber proceeding controls for predicate sentencing purposes).  If presence is required at a Sparber proceeding, it must be required anytime the sentence is changed/ affected whether for a defendant’s benefit or whether the effect is no change
Decided November 16, 2017
People v. Stanley Hardee
Issues Presented: Mr. Hardee raised two related car-stop issues:
1. Whether there was any record support for the trial court’s finding that there was (1) a substantial likelihood that the car contained a weapon or (2) an actual and specific danger to police where Mr. Hardee had been removed, frisked, and moved to the back of the car, and where no additional facts took this scenario outside the People v. Torres rule. 74 N.Y.2d 224 (1989).
2. Whether the traffic infraction and Mr. Hardee’s nervous behavior failed to furnish the requisite reasonable suspicion to justify the protective car search.
Held: In a brief memorandum decision, the Court found that whether there was a “substantial likelihood” of a weapon in the car that presented an “actual and specific” danger to the officers was a mixed question of law and fact that it had no power to decide. Therefore, the findings of the Appellate Division, for which the Court found record support, stood.
CAL Observes: The Court was split, to the point that two rounds of argument were called for to ultimately decide the issue. This split revolved around not only the merits but also something that has motivated much of the Court’s recent jurisprudence: the question of whether it has jurisdiction to decide an issue or whether cases will be determined on threshold questions such as preservation or mixed-question rules. Rather than reaching the merits, the Court has disposed of many cases—including this one—at the threshold.
Animating the dissent here was that the Court had the obligation—and the authority—to determine whether the People had proffered enough to meet the minimum standard for legal police conduct. Here, Judge Stein, writing for herself and two others, answered no.
The undisputed facts, as recounted by the dissent, were as follows. Three officers had stopped Mr. Hardee for driving over the speed limit and changing lanes without signaling. He admitted having open alcohol in the car and appeared “hyper.” In addition, Mr. Hardee looked around his car, including over his shoulder into the back seat, and at the officers. They requested that he step out of the car, and he peacefully complied after initially refusing. Though Mr. Hardee appeared nervous, he cooperated during the frisk, which yielded nothing, and when the officers asked him to move to the back of the car, where two officers guarded him. When he looked back at the car twice, he was handcuffed. Meanwhile, the third officer asked the passenger to step out, and she was moved to the back of the car too. That officer, before even realizing that Mr. Hardee was being handcuffed, went into the backseat and retrieved a bag from which he extracted a gun.
Reviewing the Torres rule and its applications, the dissent concluded that only where a defendant had evinced a willingness to harm others and attempted to hide something was the search justified. Mr. Hardee’s case contained no facts establishing these plus factors. Nor, for that matter, was there reasonable suspicion to justify his search in the first instance. The effect of the majority deferring to the lower courts’ findings was to unjustifiably broaden what was meant to be a limited exception to the rule that cars cannot be searched absent probable cause.
Decided October 24, 2017
People v. Brian Novak
Issue before the Court: Whether a due process violation occurs when the sole judge deciding a criminal defendant’s appeal as of right is the same judge who convicted the defendant after a bench trial.  (After convicting the defendant in City Court, the judge was elected to County Court.)
Held: Yes.  Although Article VI of the State Constitution does not explicitly bar this scenario, recusal was nonetheless required as a matter of due process.  The case was sent back to County Court for a de novo appeal.
CAL Observes: This kind of scenario could only happen upstate.  Interestingly, until 1961, when article VI of the State Constitution was revamped, this scenario was explicitly disallowed.  In the 1961 revamp, this language was dropped–inadvertently according to the Novak decision.  See footnote 1.  Perhaps if there’s a constitutional convention they could remember to put the language back in.   No fireworks here, but what if the newly-elected appellate judge was just one in an appellate panel of three or four or five?  BTW, this was Judge Feinman’s first authored opinion.
Decided October 24, 2017
People v. Sean Garvin
Issues before the Court: (1) Whether a warrantless arrest of a suspect in the doorway of his residence is permissible under Payton, provided that the suspect has voluntarily answered the door and the police have not crossed the threshold. (2) Whether New York’s discretionary persistent felony offender statute violates Apprendi.
Held: (1) By a 5 to 2 vote, such a warrantless arrest is permissible.  (2) By a 6 to 1 vote, the discretionary persistent statute does not violate Apprendi.
CAL Observes: (1) In her majority decision, Judge Stein stated that the Court was merely adhering to its prior rulings that, so long as the defendant was merely between the door jambs of his residence’s threshold, no Payton violation could occur as the defendant is not inside his home. In a dissent joined by Judge Rivera, Judge Wilson stated that the rule should be that Payton is violated, even if the suspect does actually cross the threshold, if the sole reason the police went to defendant’s home was to arrest him without a warrant–a ploy which should be discouraged since it allows the police to circumvent the attachment of the right to counsel (which would attach with the issuance of the warrant).  In a separate dissent, Judge Rivera would have held that a defendant has a privacy interest in the common hallway of a two-family residence, as was the case here.   (2) As to the Apprendi issue, Judge Fahey was the lone dissent. He flat out described the Court’s previous rulings on this issue as flawed and contrary to Supreme Court precedent.  Most of those previous rulings provoked dissents by judges no longer sitting. Perhaps the insertion of this dissent will motivate the United States Supreme Court to finally grant a cert petition challenging New York’s law; previous efforts have been unsuccessful.
Decided October 24, 2017
People v. John Andujar
Issue before the Court: VTL 397 makes it a misdemeanor for a non-peace-officer to “equip” a motor vehicle with a device that is capable of intercepting police radio frequencies.  Does the prohibition apply to a freestanding device in the driver’s pocket?
Held: Yes, by the Court’s 6 to 1 vote.  This is an issue of statutory construction. Consulting various dictionaries to interpret the plain language of the statute, the majority decided the word “equip” did not imply the need for physical attachment to the vehicle.
CAL Observes: Although the majority states that they were interpreting the plain language of the statute, other parts of the opinion indicate that they were looking mainly to the interpretation effectuating the intent of the legislature, which was to keep police radio frequencies from being intercepted by civilians.  In her lone dissent, Judge Stein stated that the word “equip” plainly requires an attachment to the vehicle.  Although she concedes that the majority’s interpretation “arguably effectuates the general purpose” of the VTL, she also cogently notes that the statute’s ambiguity could also make it difficult for the average citizen to decide between what is criminal and what is allowed.  At least the Court wasn’t trying to decide what the meaning of the word “is” is.
Decided October 19, 2017
People v. Peter Austin
Issue Presented: Whether appellant’s Sixth Amendment right to confrontation was violated by the introduction of DNA evidence through the testimony of a witness who had not performed, witnessed, or supervised the generation of the DNA profiles.
Held: The Court unanimously held that the court violated appellant’s right to confront the witnesses against him by permitting an OCME criminalist to testify about DNA testing and comparison evidence produced by others after appellant was under arrest without calling any witness who personally performed, supervised, or observed that testing. 
CAL Observes: The majority opinion was a straightforward application of the Court’s recent opinion in People v. John 27 N.Y.3d 294 (2016). The DNA testing and comparison results were testimonial, violating the Confrontation Clause, because the DNA was tested and the reports were prepared after Austin had been accused. The results were inadmissible through the criminalist offered by the People, because he had not prepared, witnessed, or supervised the generation of the numerical DNA profile.
In a concurring opinion, Judge Garcia did not contend otherwise. Instead, Judge Garcia pitched Austin as a vehicle for overruling John in the United States Supreme Court (Slip Op., concurring opinion at 2) ( “while the procedure used here -- an expert relying on work performed by others but not admitted into evidence -- mirrors the facts of Williams, our holding in John compels a different result). While Judge Garcia is correct that Austin’s facts have some significant parallels to Illinois v. Williams, 567 U.S. 50, 132 S.Ct. 1221 (2012), he’s incorrect that the rules set down by the Supreme Court in Williams, would compel a different result than reached by the Court in Austin. 
The Williams plurality found the admission of DNA test results did not violate the Confrontation Clause for two reasons. Both would have independently excluded the DNA-test-results evidence linking Austin to the crime scene here. First, the Williams Court found that, because the DNA-results report was not entered into evidence, but only referred to by a DNA expert, the test results had been not offered for their truth, and therefore did not violate the Clause. The Court cited to the Illinois rules of evidence allowing an expert, in a non-jury trial, to “base an opinion an opinion on facts that are ‘made known to the expert at or before the hearing.” Williams, 567 U.S. at _, 132 S.Ct. at 2224. Because the report results were not admitted for the truth of the matter asserted, the evidence did not violate the Clause, since the results of the reports were only admitted as a basis for the expert’s conclusion that the DNA found on the weapon matched the defendant’s. New York law, however, does not permit such basis testimony. People v. Goldstein, 6 N.Y.3d 119, 127 (2005); John, 27 N.Y.3d at 306; Slip Op. at 16 (opinion testimony based on out-of-court statements inadmissible unless underlying statement is admissible); see, Williams, _ U.S. at _, 132 S.Ct. at 2269 (Kagan,  J., dissenting)(citing Goldstein and other sources describing the idea that basis evidence comes in for some reason other than its truth as “factually implausible,” “nonsense,” and “sheer fiction”). Here, when the criminalist testified that he’d looked at the DNA profile comprising appellant’s DNA profile, and concluded that it matched the profile compiled from the scene, the criminalist was introducing the underlying test results for their truth.
Second, the Supreme Court found that the DNA-test-result evidence did not violate the Clause because the test had not been prepared to accuse an identified suspect, but instead to “catch a dangerous rapist who was still at large.” Williams, 567 U.S. at 84. The test results were pre-accusatory, because they were prepared before Williams was identified as a suspect. In Austin, Judge Garcia acknowledged that the DNA test was performed after Austin had been identified as a suspect and was done for the purpose of proving his guilt (Slip Op. at 3). But Judge Garcia contends that, because the accusatory test was preceded by a CODIS match, the post-accusatory report results entered into evidence through the criminalist were merely confirmatory of the prior CODIS match. Judge Garcia would create an exception to the classification of post-accusatory testing results as testimonial where the results confirm the results of a prior pre-accusatory test. 
Creating a confirmatory exception to the Clause would be contrary to its purpose. That the DNA criminalist in Austin was aware that there had been a pre-arrest DNA profile in the CODIS database and that that profile connected Austin to the crime scene did not render the post-arrest DNA profile non-testimonial. That Austin’s CODIS profile alerted authorities that it might be his blood left behind at the two crime scenes made the subsequent testing more accusatory not less, and the post-arrest profile more testimonial than if there had been no prior profile from appellant suggesting he had been present at the site of the burglaries. 
If the facts in Austin are judged solely by the rules laid down by the plurality opinion in Williams, the criminalist’s testimony about the post-arrest DNA test results would have violated the Confrontation Clause.
Decided October 19, 2017
People v. Vilma Bautista
Decided October 19, 2017
People v. James L. Carr
Decided October 17, 2017
People v. John R. Simmons
Decided October 12, 2017
People v. Phillip Wright
Decided October 12, 2017
People v. Ross Campbell
Decided September 7, 2017
People v. Gregory Lee
Decided September 5, 2017
People v. Douglas R. Every